After a seven-day bench trial in October, the Central District of California this month found that KETTLE is generic for potato chips.
Plaintiff Classic Foods International Corp. sought a declaratory judgment that its use of the term “kettle” in its “Kettle Classics” brand potato chips did not infringe defendant Kettle Foods, Inc.’s rights in its “Kettle Chips” brand of potato chips. Defendant counterclaimed, alleging that plaintiff infringed its KETTLE mark, which defendant argued was protectable as a descriptive mark in which it had secondary meaning.
Judge Cormac Carney found that KETTLE was generic for a type of potato chip, namely, kettle chips, making it unprotectable as a trademark. In the court’s words:
“The evidence is overwhelming that the terms ‘kettle’ and ‘kettle chips’ refer to a particular type, category, or genus of potato chips. Kettle chips are chips that either have been, or appear to have been, cooked in a kettle. Moreover, consumers and producers alike have come to use the term ‘kettle chip’ to describe a potato chip that is hand-cooked, crunchy in texture, and sweeter in flavor. Thus, any descriptive function performed by ‘kettle’ or ‘kettle chips’ describes attributes that are shared by all chips in the kettle chips category. The primary significance of the terms is to identify a type of potato chip and, therefore, they must be generic.”
The court’s January 2 memorandum of decision entering judgment for plaintiff is accessible here.
Michael Atkins