United States Court of Appeals 

for the Federal Circuit ______________________

REAL FOODS PTY LTD.,

Appellant

v.

FRITO-LAY NORTH AMERICA, INC.,

Cross-Appellant

______________________

2017-1959, 2017-2009

______________________

Appeals from the United States Patent and Trademark Office, Trademark Trial and Appeal Board in Nos. 

91212680, 91213587.

______________________

SEALED OPINION ISSUED: September 21, 2018

PUBLIC OPINION ISSUED: October 4, 2018*

______________________

JEANNE M. HAMBURG, Norris, McLaughlin & Marcus, 

PA, New York, NY, argued for appellant. Also represented by STEPHANIE SPANGLER; KELLY WATKINS, Allentown, 

PA. 

 WILLIAM G. BARBER, Pirkey Barber LLP, Austin, TX, 

 

* This opinion was originally filed under seal and 

has been unsealed in full.
2 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

argued for cross-appellant. Also represented by TYSON 

DAVID SMITH, DAVID ARMENDARIZ. 

______________________

Before WALLACH, LINN, and HUGHES, Circuit Judges.

WALLACH, Circuit Judge.

Appellant Real Foods Pty Ltd. (“Real Foods”) sought 

registration of two marks: “CORN THINS,” for “crispbread slices predominantly of corn, namely popped corn 

cakes”; and “RICE THINS,” for “crispbread slices primarily made of rice, namely rice cakes.” J.A. 279 (emphasis 

omitted). Cross-Appellant Frito-Lay North America, Inc. 

(“Frito-Lay”) opposed the registrations, arguing that the 

proposed marks should be refused as either generic or 

descriptive without having acquired distinctiveness. See 

J.A. 241–43 (opposition to RICE THINS), 254–56 (opposition to CORN THINS). The U.S. Patent and Trademark 

Office’s (“USPTO”) Trademark Trial and Appeal Board 

(“TTAB”) refused registration of Real Foods’ applied-for 

marks in an opinion finding the marks “are merely descriptive and have not acquired distinctiveness,” FritoLay N. Am., Inc. v. Real Foods Pty Ltd., Nos. 91212680, 

91213587, 2017 WL 914086, at *21 (T.T.A.B. Feb. 21, 

2017), but also dismissing Frito-Lay’s “genericness claim,” 

id. at *14. 

Both parties appeal. We have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(4)(B) (2012). We affirm-in-part, 

vacate-in-part, and remand. 

DISCUSSION

Real Foods argues the TTAB erred in finding the proposed marks “descriptive, rather than suggestive, . . . because it applied incorrect legal standards in 

evaluating the marks and failed to properly consider all of 

the evidence of record.” Appellant’s Br. 20; see id. at 21–

35. Alternatively, Real Foods contends that, even if its 
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 3

marks are descriptive, “[they] have acquired [distinctiveness].” Id. at 41 (capitalization modified); see id. at 41–61. 

Frito-Lay cross-appeals the TTAB’s dismissal of its claim 

that the proposed marks are generic. Cross-Appellant’s 

Br. 15–22. After articulating the governing legal principles, we address Real Foods’ appeal and then Frito-Lay’s 

cross-appeal. 

I. Standard of Review and Legal Framework

We review the TTAB’s legal conclusions de novo and 

its findings of fact for substantial evidence. In re N.C. 

Lottery, 866 F.3d 1363, 1366 (Fed. Cir. 2017). “Substantial evidence requires more than a mere scintilla and is 

such relevant evidence as a reasonable mind would accept 

as adequate to support a conclusion.” Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 964 

(Fed. Cir. 2015) (internal quotation marks and citation 

omitted). “The [TTAB]’s finding[s] may be supported by 

substantial evidence even if two inconsistent conclusions 

can be drawn from the evidence.” Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 1349 (Fed. Cir. 

2011) (citation omitted). 

“[T]here are four categories of [terms] that lie along a 

spectrum” used to categorize proposed marks. In re N.C. 

Lottery, 866 F.3d at 1366 (citation omitted). “When 

arranged in an ascending order which roughly reflects 

their eligibility for trademark status and the degree of 

protection accorded, these four categories are: generic (or 

common descriptive), merely descriptive, suggestive, and 

arbitrary []or fanciful[] marks.” Id. (internal quotation 

marks and citations omitted). “Placement of a term on 

the fanciful-suggestive-descriptive-generic continuum is a 

question of fact.” DuoProSS Meditech Corp. v. Inviro 

Med. Devices, Ltd., 695 F.3d 1247, 1252 (Fed. Cir. 2012) 

(quoting In re Dial-A-Mattress Operating Corp., 240 F.3d 

1341, 1344 (Fed. Cir. 2001)).
4 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

Generic terms “cannot be registered as trademarks.” 

Princeton Vanguard, 786 F.3d at 965 (citation omitted). 

“A generic term is the common descriptive name of a class 

of goods or services” and “[is] by definition incapable of 

indicating a particular source of the goods or services.” 

Id. (internal quotation marks and citations omitted); see 

Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 

(1992) (“[G]eneric marks . . . refer to the genus of which 

the particular product is a species.” (internal quotation 

marks, brackets, and citation omitted)). 

Terms “that are merely descriptive cannot be registered [on the principal register1] unless they acquire”

distinctiveness, which is “secondary meaning[,] under [15 

U.S.C. § 1052(f)2].” In re N.C. Lottery, 866 F.3d at 1366 

(citation omitted); see 15 U.S.C. § 1052(f) (similar); see 

also Two Pesos, 505 U.S. at 769 (“This acquired distinctiveness is generally called ‘secondary meaning.’”). “A 

 

1 The Lanham Act, see 15 U.S.C. §§ 1051–1072, 

1091–1096, 1111–1129, 1141–1141n (2012), contains 

provisions related to the principal register, see id.

§§ 1051–1072, which is the primary register for trademarks on which the USPTO maintains registered marks 

“by which the goods of the applicant may be distinguished 

from the goods of others,” id. § 1052. “A certificate of 

registration of a mark upon the principal register” is

“prima facie evidence of the validity of the registered 

mark and of the registration of the mark, of the owner’s 

ownership of the mark, and of the owner’s exclusive right 

to use the registered mark in commerce or in connection 

with the goods or services specified in the certificate.” Id.

§ 1057(b).

2 Section 1052(f) provides that “nothing in this 

chapter shall prevent the registration of a mark . . . which 

has become distinctive of the applicant’s goods in commerce.” 15 U.S.C. § 1052(f) (emphasis added).
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 5

mark is merely descriptive if it immediately conveys 

information concerning a feature, quality, or characteristic of the goods or services for which registration is 

sought.” In re N.C. Lottery, 866 F.3d at 1367 (citation 

omitted). “The ‘descriptive’ category is not a monolithic 

set of terms. Some terms are only slightly descriptive 

and . . . [o]ther terms are highly descriptive . . . .” 

2 J. McCarthy, Trademarks and Unfair Competition 

§ 11:25 (5th ed. 2018) (emphases added). Secondary 

meaning, required to register a descriptive mark, “occurs 

when, in the minds of the public, the primary significance 

of a mark is to identify the source of the product rather 

than the product itself.” Wal-Mart Stores, Inc. v. Samara 

Bros., Inc., 529 U.S. 205, 211 (2000) (internal quotation 

marks, brackets, and citation omitted). “[T]he applicant’s 

burden of showing acquired distinctiveness increases with 

the level of descriptiveness; a more descriptive term 

requires more evidence of secondary meaning.” In re 

Steelbuilding.com, 415 F.3d 1293, 1300 (Fed. Cir. 2005)

(citation omitted).3

 

3 The Lanham Act also provides for registration on 

the supplemental register. See 15 U.S.C. §§ 1091–1096; 

see also In re Bush Bros. & Co., 884 F.2d 569, 570 (Fed. 

Cir. 1989) (citations omitted) (“[A] mark that is ineligible 

for registration on the [p]rincipal [r]egister because it is 

‘merely descriptive’ of the goods or services, may be registered on the [s]upplemental [r]egister.”). “A mark may be 

registered on the supplemental register if it is capable of 

distinguishing the applicant’s goods or services,” even 

though it has not yet acquired distinctiveness. In re Am. 

Fertility Soc’y, 188 F.3d 1341, 1343 (Fed. Cir. 1999) (emphasis added); see 15 U.S.C. § 1091. By contrast, a mark 

that is generic cannot be registered on the supplemental 

register because it is “the ultimate in descriptiveness” and 

therefore “cannot acquire distinctiveness.” Royal Crown 
6 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

Terms that are suggestive, arbitrary, or fanciful are 

“inherently distinctive” and therefore registrable. WalMart, 529 U.S. at 210–11; see In re Chippendales USA, 

Inc., 622 F.3d 1346, 1350–51 (Fed. Cir. 2010) (discussing 

registrability of these terms). “[A] suggestive mark 

requires imagination, thought[,] and perception to reach a 

conclusion about the nature of the goods.” In re N.C. 

Lottery, 866 F.3d at 1367 (internal quotation marks and 

citation omitted). Arbitrary or fanciful marks “contain 

coined, arbitrary or fanciful words or phrases that have 

been added to rather than withdrawn from the human 

vocabulary by their owners, and have, from the very 

beginning, been associated in the public mind with a 

particular product,” and these marks “have created in the 

public consciousness an impression or symbol of the 

excellence of the particular product in question.” In re 

Chippendales, 622 F.3d at 1350 n.2 (internal quotation 

marks omitted) (quoting Moseley v. V Secret Catalogue, 

Inc., 537 U.S. 418, 429 n.10 (2003)).

“In opposition proceedings, the opposer bears the burden of establishing that the applicant does not have the 

right to register its mark.” Hoover Co. v. Royal Appliance 

Mfg. Co., 238 F.3d 1357, 1360 (Fed. Cir. 2001). Here, the 

opposer, Frito-Lay, bears the burden of proving that the 

term is generic or merely descriptive by a preponderance 

of the evidence. See Princeton Vanguard, 786 F.3d at 965

 

Co. v. Coca-Cola Co., 892 F.3d 1358, 1366 (Fed. Cir. 2018) 

(internal quotation marks and citation omitted). Registration on the supplemental register “confers considerably 

fewer advantages than principal registration,” In re Am. 

Fertility Soc’y, 188 F.3d at 1343, with supplemental 

registration providing “no substantive trademark rights 

beyond those under common law,” id. (quoting J. McCarthy, McCarthy on Trademarks and Unfair Competition 

§ 19:36 (4th ed. 1999)).
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 7

(generic); StonCor Grp., Inc. v. Specialty Coatings, Inc., 

759 F.3d 1327, 1332 (Fed. Cir. 2014) (merely descriptive). 

However, for acquired distinctiveness, which “serves as an 

exception to a rejection,” Yamaha Int’l Corp. v. Hoshino 

Gakki Co., 840 F.2d 1572, 1580 (Fed. Cir. 1988), the 

applicant, Real Foods, has the “final burden . . . of going 

forward with evidence to . . . establish acquired distinctiveness by at least a preponderance of the evidence,” id.

at 1579 (internal quotation marks omitted). 

II. Real Foods’ Appeal 

A. Substantial Evidence Supports the TTAB’s Descriptiveness Finding

The TTAB determined that both the terms CORN 

THINS and RICE THINS “are merely descriptive of a 

feature of [Real Foods’] respective goods,” Frito-Lay, 2017 

WL 914086, at *17, and found the marks “highly descriptive,” id. at *20. According to the TTAB, “a consumer will 

immediately understand, when encountering the proposed 

marks, that a feature or characteristic of [Real Foods’] 

goods is that they are thin in cross section and made 

primarily of corn in one instance and rice in the other.” 

Id. at *15. The TTAB further explained that “because 

each component of the [proposed marks] retains its merely descriptive significance in relation to the claimed goods, 

each combination results in a composite that is itself 

merely descriptive.” Id. at *17. Real Foods avers the 

proposed marks are suggestive, rather than descriptive, 

because they “require[] some imagination for the consumer to reach a conclusion about the nature of the product,”

and the TTAB failed to “examine the marks in their 

entireties or in the context of the relevant product category.” Appellant’s Br. 23 (capitalization modified); see id. at 

23–27. We disagree with Real Foods. 

“When determining whether a mark is merely descriptive, the [TTAB] must consider the commercial 

impression of a mark as a whole,” “viewed through the 
8 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

eyes of a consumer.” DuoProSS, 695 F.3d at 1252, 1253

(emphasis added) (citation omitted). The TTAB should 

“consider the mark in relation to the goods for which it is 

registered,” asking “whether someone who knows what 

the goods and services are will understand the mark to 

convey information about them.” Id. at 1254 (internal 

quotation marks and citation omitted). “Evidence of the 

public’s understanding of the term may be obtained from 

any competent source, such as purchaser testimony, 

consumer surveys, listings in dictionaries, trade journals, 

newspapers[,] and other publications.” Royal Crown, 892 

F.3d at 1366 (internal quotation marks and citation 

omitted). In considering the mark as a whole, the TTAB 

“may not ‘dissect’ the mark into isolated elements,” without ever “consider[ing] . . . the entire mark,” DuoProSS, 

695 F.3d at 1252, 1253, but it “may weigh the individual 

components of the mark to determine the overall impression or the descriptiveness of the mark and its various 

components,” In re Oppedahl & Larson LLP, 373 F.3d 

1171, 1174 (Fed. Cir. 2004) (citation omitted).

Substantial evidence supports the TTAB’s finding 

that the proposed marks are highly descriptive. The 

terms “corn” and “rice,” both of which are grains, see

Frito-Lay, 2017 WL 914086, at *12 & nn.77–78 (taking 

judicial notice of dictionary definitions of each term),4

describe the primary ingredient in Real Foods’ respective 

goods, see J.A. 471 (stating, in the declaration of Real 

Foods’ managing director, “Real Foods’ products are 

manufactured by placing rice or corn grains into a mold, 

to which heat and pressure is applied, resulting in the 

popping of the corn and puffing of the rice and their 

formation into cakes”); see also J.A. 559 (providing, in 

 

4 The parties do not contest the TTAB’s noticing of 

these definitions. See generally Appellant’s Br.; CrossAppellant’s Br.
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 9

online marketing materials, that maize (i.e., corn) is the 

primary ingredient by percentage in CORN THINS), 571 

(providing, in similar marketing materials, that rice is the 

primary ingredient in RICE THINS). Before the TTAB, 

Real Foods disclaimed the terms “corn” and “rice” in its 

proposed marks, see J.A. 156 (“No claim is made to the 

exclusive right to use CORN apart from the mark as 

shown.”), 210 (“No claim is made to the exclusive right to 

use RICE apart from the mark as shown.”), thereby 

recognizing the descriptive function of these terms, see In 

re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 1335 (Fed. 

Cir. 2015) (“Disclaiming unregistrable components prevents the applicant from asserting exclusive rights in the 

disclaimed unregistrable terms.”). Indeed, the terms corn 

and rice in Real Foods’ proposed marks are descriptive 

because they identify “ingredients,” which are “qualities 

or properties” of Real Foods’ goods. In re Gyulay, 820 

F.2d 1216, 1218 (Fed. Cir. 1987) (internal quotation 

marks and citation omitted).

Moreover, the term thins describes physical characteristics of the corn and rice cakes. See J.A. 469 (stating, 

in the declaration of Real Foods’ Managing Director, that 

the “corn cakes are considerably slimmer than traditional 

cakes, with slices under 0.8 centimeters in depth, as 

compared to the usual 1.6 centimeters” (emphasis added)), 474 (stating, in the same declaration, that both 

CORN THINS and RICE THINS have “slim dimensions”). 

Indeed, Real Foods’ advertising materials use the word 

“thin” to describe their products. See, e.g., J.A. 5097 

(“They are a delicious thin corn cake, with ‘All Natural’ 

flavoring.” (emphasis added)), 5181 (describing the product as having “THIN slices not thick”), 5188 (stating 

“Corn & Rice Thins are THIN”). The record is replete 

with evidence of the term thins being used in marks for 

other, similar snack food products, see, e.g., J.A. 4076–78 

(identifying, in Frito-Lay’s expert report, 119 products 

using the term thins, including “Back to Nature Tomato 
10 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

Herb Rice Thins,” “Baked Potato Thins,” “FalaFel Thins,” 

“Pita Thins,” and “Wheat Thins”), which is evidence 

relevant to the issue of the term’s descriptiveness, cf.

Royal Crown, 892 F.3d at 1370 (recognizing that indirect 

evidence, including of “competitive use, evidence that 

other companies use [a term] in combination with their 

own . . . marks, third-party registrations[,] and applications for such combined marks,” may be relevant for 

genericness). Thus, the proposed marks’ disclosure of this 

thin “characteristic” or “feature” of the goods is descriptive. In re Chamber of Commerce of the U.S., 675 F.3d 

1297, 1300 (Fed. Cir. 2012) (internal quotation marks and 

citation omitted).

Viewing the marks as composites “do[es] not create a 

different impression.” In re Oppedahl, 373 F.3d at 1177.5 

The composite marks are “merely descriptive” because 

they “immediately convey[] knowledge of a quality or 

characteristic of the product[s],” specifically the products’

main ingredients and thickness. Id. at 1173 (citation 

omitted). Contrary to Real Foods’ argument, it is not 

determinative that the marks do not also make reference 

to the products being “cakes” or being made with “popped 

or puffed ingredients.” Appellant’s Br. 16, 17; see In re 

Oppedahl, 373 F.3d at 1173 (“A mark may be merely 

descriptive even if it does not describe the full scope and 

extent of the applicant’s goods or services.” (emphasis 

 

5 The TTAB did not merely consider the two individual terms in each of the marks without considering the 

marks as a whole, as Real Foods contends. See Appellant’s Br. 25–26. Instead, the TTAB first weighed the 

individual components of the marks, then explicitly 

discussed the marks as a whole, and concluded that even 

the composite marks are descriptive, see Frito-Lay, 2017 

WL 914086, at *17, as it is permitted to do, see In re 

Oppedahl, 373 F.3d at 1174–75. 
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 11

added) (internal quotation marks and citation omitted)).6

Not only does the record reveal that Real Foods has 

deployed the proposed marks as generic descriptors, see, 

e.g., J.A. 5309 (referring, in Real Foods’ advertising 

material, to the product as “Delicious Golden Corn Thins 

With Real Flavoring,” with the term “Corn Thins” stylized 

the same as the rest of the phrase), 5319 (same), but 

purchasers of Real Foods’ products have also used these 

terms to describe Real Foods’ products, rather than as 

source identifiers for the products, which amounts to

direct evidence of the “commercial impression” of the 

mark as a whole, DuoProSS, 695 F.3d at 1252; see, e.g., 

J.A. 5288 (referring, by a potential customer, to “[Real 

Foods’] corn thins product”), 5318 (similar by an online 

distributor of Real Foods’ product). Therefore, substantial 

evidence supports the TTAB’s descriptiveness finding.

Real Foods’ counterarguments do not convince us otherwise. First, Real Foods argues it provided evidence that 

its marks are suggestive “in the form of marketing and 

advertising materials that supported consumer under-

 

6 Real Foods identifies “alternative names that [it 

believes] are merely descriptive,” such as “thin corn 

cakes,” “slender corn cakes,” and “slim corn cakes.” 

Appellant’s Br. 35 (internal quotation marks omitted). 

However, it is difficult to see how Real Foods’ proposed 

marks are sufficiently different from these admittedly 

descriptive terms. To the extent Real Foods believes it is 

deploying the word “thin” in a unique way, i.e., turning 

that word into a noun by adding an “s,” see Frito-Lay, 

2017 WL 914086, at *15 (finding “there is no definition 

from a traditional dictionary for ‘thins’ as a noun”), such 

use does not change the term’s descriptive function, see 

2 McCarthy § 11:29 (“A mere change of form of a descriptive term will not automatically remove it from the descriptive category.” (emphasis added)).
12 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

standing of the marks . . . as a double entendre,” by 

conveying “the low calorie, light[,] and diet-friendly characteristics of the products.” Appellant’s Br. 27. Real 

Foods cites In re Colonial Stores, Inc., see id., in which our 

predecessor court held that an applicant’s proposed mark 

“SUGAR & SPICE” was suggestive for “[b]akery products,” including “cakes, cookies, breads, rolls, donuts, 

pastries, [and] crackers,” 394 F.2d 549, 549 (CCPA 1968)

(internal quotation marks omitted), even though they also 

“describe[d] goods containing sugar and spice,” id. at 550. 

The court explained that the mark at issue creates an 

“unusual association” in the view of a consumer and 

evokes the “immediate impression . . . of sugar and spice 

with everything nice,” id. at 552 (emphasis added) (internal quotation marks and footnote omitted), by referencing 

a well-known “nursery rhyme,” id. at 553. Here, however,

the TTAB rejected Real Foods’ argument “in light of the 

evidence of use of ‘thins’ by other manufacturers on 

cookies, which are not known for having a low caloric 

content, and other snack foods such as pretzels, even 

chocolate-coated pretzels.” Frito-Lay, 2017 WL 914086, at 

*17; see id. (stating it was “not persuade[d]” by Real 

Foods’ evidence). We find substantial evidence supports 

the TTAB’s finding of no additional suggestive meaning of 

the proposed marks because similar products, which are 

not typically low in calories or known for healthfulness, 

contain the same descriptive term of thins. See, e.g.,

J.A. 1069 (providing “ANNA’S GINGER THINS” for 

gingerbread cookies), 2824 (providing a trademark application seeking registration of “BROWNIE THINS” for 

“dessert snacks . . . of cookies, cakes, donuts, brownies, or 

muffins”), 4051–52 (listing several types of pretzel thins 

in Frito-Lay’s expert report), 5775 (depicting, inter alia, 

“barkTHINS,” a flavor of which is described as “Dark 

Chocolate Pretzel Snacking Chocolate”). Therefore, it is 

reasonable to conclude that Real Foods’ claimed additional meaning of healthfulness would not attach in the eyes 

of a consumer, see Frito-Lay, 2017 WL 914086, at *17, 
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 13

such that substantial evidence supports the TTAB’s 

conclusion, even if other evidence may reasonably allow 

one to infer a healthfulness-related meaning, see 

Citigroup, 637 F.3d at 1349 (explaining that substantial 

evidence may support a decision “even if two inconsistent 

conclusions can be drawn from the evidence”).

Second, Real Foods contends the TTAB “improperly 

relied on Frito-Lay’s third party evidence,” contained in 

its expert report, “concerning the usage of ‘THINS.’”

Appellant’s Br. 32 (capitalization modified). Specifically, 

Real Foods argues that Frito-Lay’s expert report “did not 

consider the meaning . . . of [the proposed marks] as a 

whole” and only analyzed “crackers, chips, and other 

snack foods[, which are] different from popped corn and 

rice cakes.” Id. (emphasis added). The TTAB reasonably 

relied on Frito-Lay’s expert report, which concluded “[t]he 

word THINS when used for snack foods such as crackers, 

cookies, wafers, biscuits, crispbreads, crispbread slices, or 

crisps does not indicate the origin or source of the snack 

food item.” J.A. 4010–11. There is no requirement that 

an expert report provide an opinion as to the marks as a 

whole for the TTAB to rely on it, and we decline to impose 

such a requirement. Instead, the TTAB is required to 

consider the mark “as a whole,” DuoProSS, 695 F.3d at 

1252, which it did, see Frito-Lay, 2017 WL 914086, at *17. 

In addition, as we have observed, “[e]vidence of the 

public’s understanding of [a] term may be obtained from 

any competent source.” Royal Crown, 892 F.3d at 1366 

(emphasis added) (internal quotation marks and citation 

omitted). Here, the parties waived “all objections to the 

admissibility of the evidence . . . , but without prejudice to 

[their] rights to rely on arguments concerning the probative value of such evidence,” in order to take advantage of 

the TTAB’s “Accelerated Case Resolution . . . procedure.” 

Frito-Lay, 2017 WL 914086, at *2 (footnote omitted). 

Frito-Lay’s expert report is relevant to the inquiry because Real Foods’ own advertising material compares its
14 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

goods to snack foods, namely crackers. See, e.g., J.A. 5185 

(calling its corn thins product “a substitute for tortilla 

chips”), 5186 (referring to the same as “a real alternative 

to bread, crackers, rice cakes[,] or crispbreads”), 5195 

(describing its product as a “healthy popped corn cake” 

that “taste[s] just like popcorn—in a cracker” (emphasis 

added)). Although Real Foods now attempts to undermine the relevance of this evidence by characterizing its 

proposed marks as limited to “popped corn and rice 

cakes,” Appellant’s Br. 32, each of Real Foods’ applications identifies the goods as “crispbread slices,” which are 

kinds of crackers, as discussed below, see infra Section III; 

see also J.A. 164 (citing evidence, by a USPTO examiner, 

that indicates corn cakes are a type of crispbread). Therefore, it was not improper for the TTAB to rely on the third 

party evidence contained in Frito-Lay’s expert report.

Third, Real Foods argues the TTAB “failed to consider 

third party registrations of THINS.” Appellant’s Br. 33 

(capitalization modified); see id. at 33–35. However, the 

TTAB’s Opinion identified several trademark registrations that “incorporate the term ‘thins,’” Frito-Lay, 2017 

WL 914086, at *9–10; see id. at *9 (providing these marks 

in a section entitled “Registrations by Others”), and 

determined they “ha[ve] limited probative value” because 

“each application must be examined on its own merits,”

id. at *5 n.18 (internal quotation marks and citation 

omitted). The TTAB is correct that these prior registrations do not compel registration of Real Foods’ proposed 

marks. See In re Cordua Rests., Inc., 823 F.3d 594, 600

(Fed. Cir. 2016) (“The [US]PTO is required to examine all 

trademark applications for compliance with each and 

every eligibility requirement, . . . even if the [US]PTO 

earlier mistakenly registered a similar or identical mark 

suffering the same defect.”). Instead, as discussed, the 

TTAB properly considered the proposed marks in light of 

the record and adequately supported its finding that Real 

Foods’ marks are highly descriptive. 
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 15

B. Substantial Evidence Supports the TTAB’s Acquired 

Distinctiveness Finding

The TTAB found that Real Foods “has not demonstrated that its applied-for marks have acquired distinctiveness.” Frito-Lay, 2017 WL 914086, at *20. The TTAB 

noted that (1) Real Foods “has done little or no advertising of CORN THINS or RICE THINS”; (2) Real Foods’ 

“sales figures, while not insignificant, are not high”; 

(3) “the use of THINS is not limited to [Real Foods]”; and 

(4) a survey conducted by Frito-Lay’s expert, which had

“some probative value,” established “limited recognition of 

CORN THINS as a mark.” Id. Real Foods argues the 

TTAB erred because “its marks have acquired secondary 

meaning” and maintains the TTAB failed to properly 

consider the record evidence. Appellant’s Br. 41 (capitalization modified). We disagree with Real Foods. 

Acquired distinctiveness, i.e., “[s]econdary meaning,” 

“is a term of art which denotes that there is an association 

formed in the minds of the consumers between the mark 

and the source or origin of the product.” Tone Bros., Inc. 

v. Sysco Corp., 28 F.3d 1192, 1201 (Fed. Cir. 1994) (internal quotation marks and citation omitted). “To determine 

whether a mark has acquired secondary meaning, courts 

consider: advertising expenditures and sales success; 

length and exclusivity of use; unsolicited media coverage; 

copying of the mark . . . ; and consumer studies.” Coach 

Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 

1379 (Fed. Cir. 2012) (citation omitted). 

Substantial evidence supports the TTAB’s finding 

that Real Foods’ proposed, highly descriptive marks have 

not acquired distinctiveness. Real Foods’ sales and advertising figures weigh against a finding of acquired distinctiveness. The record indicates that Real Foods has spent 

a relatively small amount on advertising as compared to 

other expenditures, J.A. 5469 (providing annual U.S. 

advertising figures relative to other expenditures); see 
16 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

J.A. 5369 (acknowledging, by Real Foods’ marketing 

manager, that Real Foods has a small advertising budget), and that its overall sales figures are not high, 

J.A. 5103 (discussing annual sales in the context of market needs); see J.A. 1191 (showing a recent decrease in 

overall sales numbers). Additionally, research conducted 

by a third party on behalf of Real Foods demonstrates 

that consumers have low brand loyalty to and low preference for Real Foods’ corn and rice cakes, as compared to 

its competitors’. See J.A. 5137 (depicting a graph comparing consumer brand awareness for several companies 

producing similar products). 

Moreover, Frito-Lay’s expert survey established that 

only around ten percent of respondents associated CORN 

THINS with a particular company, see J.A. 4405 (stating 

“a net of 10.3% of respondents stated that they associated 

CORN THINS with only one company” and, when the pool 

of respondents was limited to “only purchasers and prospective purchasers of crispbreads/crispbread slices,” that 

number increased to only “10.9% of the respondents”), and 

that about half of those respondents identified a company 

other than Real Foods, see J.A. 4412 (“42 of the 89 subjects who indicated ‘only one company’ . . . specified the 

name of a company other than Real Foods . . . .”). The 

TTAB gave this survey “some probative” weight. FritoLay, 2017 WL 914086, at *20. Similar survey data has 

been held to demonstrate that a descriptive mark has not 

acquired distinctiveness. For example, in Roselux Chemical Co. v. Parsons Ammonia Co., our predecessor court 

reversed a trademark registration, finding the mark 

descriptive and not having acquired distinctiveness, 

where the survey data demonstrated that only “10% of the 

people who actually know the [ammonia] product” called 

it by the name of the proposed mark. 299 F.2d 855, 862 

(CCPA 1962). The court reasoned that one could not 

“assume therefrom that the primary significance of the 

[descriptive term] to purchasers of ammonia is as a desig-
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 17

nation of origin.” Id.; cf. Princeton Vanguard, 786 F.3d at 

969 (recognizing, for genericness, that direct consumer 

survey evidence is considered probative and generally 

“preferable to indirect forms of evidence” (internal quotation marks and citation omitted)). Therefore, taken 

together, this constitutes substantial evidence supporting

the TTAB’s finding.

Real Foods’ counterarguments are unavailing. First, 

Real Foods avers that the TTAB’s “erroneous determination that the marks were ‘highly descriptive’ rendered it 

impossible for Real Foods to establish secondary meaning.” Appellant’s Br. 36 (capitalization modified); see id.

at 36–41. The TTAB did not place an inappropriately 

heavy burden on Real Foods. Our case law provides that 

“[w]here a mark sits on a sliding scale of descriptiveness 

impacts the burden a proposed registrant must bear with 

respect to its claim of acquired distinctiveness.” Royal 

Crown, 892 F.3d at 1365; see In re Steelbuilding.com, 415 

F.3d at 1301 (stating that, where a “proposed mark is 

highly descriptive,” the “applicant had the burden to show 

a concomitantly high level of secondary meaning”). 

Rather than making it impossible for Real Foods to establish secondary meaning, the TTAB found the marks 

“highly descriptive,” thereby properly placing a heavier 

burden on Real Foods to prove distinctiveness. Frito-Lay, 

2017 WL 914086, at *20.

Second, Real Foods argues the TTAB “ignored” evidence of Real Foods’ “substantially exclusive and continuous use of CORN THINS and RICE THINS over many 

years,” which was “clear legal error” pursuant to § 1052(f). 

Appellant’s Br. 42 (capitalization modified). However, 

§ 1052(f) provides that “[t]he Director [of the USPTO] may 

accept as prima facie evidence that the mark has become 

distinctive . . . proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce 

for the [previous] five years.” 15 U.S.C. § 1052(f) (emphasis added). Therefore, while evidence of substantially 
18 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

exclusive and continuous use may be sufficient to prove a 

prima facie case of acquired distinctiveness, this is not 

always the case. See In re La. Fish Fry, 797 F.3d at 1337. 

“Particularly for a mark that is . . . highly descriptive like 

[Real Foods’ proposed marks], the [TTAB] was within its 

discretion not to accept [Real Foods’] alleged five years of 

substantially exclusive and continuous use as prima facie 

evidence of acquired distinctiveness.” Id. (italics omitted).

Moreover, the TTAB did not simply ignore this evidence; 

it explicitly “acknowledged this evidence,” as Real Foods 

admits. Appellant’s Br. 42 (citing Frito-Lay, 2017 WL 

914086, at *19 n.112). 

Third, Real Foods contends the TTAB (1) ignored evidence of “Real Foods’ sales and top market share position,” id. at 43 (capitalization modified); see id. at 43–45, 

(2) “failed to properly weigh Real Foods’ [evidence of its] 

marketing efforts,” id. at 45 (capitalization modified); see 

id. at 45–54, and (3) “gave improper weight to Frito-Lay’s 

flawed survey,” id. at 55 (capitalization modified); see id.

at 55–61.7 The TTAB is entitled to weigh the evidence, 

 

7 Many of Real Foods’ arguments mischaracterize 

the TTAB’s findings. For example, Real Foods contends 

the TTAB “erred when it found no probative value in Real 

Foods’ expert [declaration],” Appellant’s Br. 53 (emphasis 

added); however, the TTAB explicitly considered the 

expert report and evidence in question but found it had 

“little probative value on the question of acquired distinctiveness.” Frito-Lay, 2017 WL 914086, at *18 (emphasis 

added). Real Foods also states the “[TTAB] inappropriately disregarded [certain] evidence by failing to consider 

social media and online engagement with consumers,” 

Appellant’s Br. 48; yet, the TTAB explicitly considered 

this evidence, see, e.g., Frito-Lay, 2017 WL 914086, at *18 

(“[Real Foods] has over 16,000 Facebook ‘likes’ and its 
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 19

see Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 

856 (1982) (“Determining the weight and credibility of the 

evidence is the special province of the trier of fact.”), and

we reject Real Foods’ invitation to disturb the TTAB’s 

findings by reweighing the evidence. Furthermore, to the 

extent Real Foods believes the TTAB committed legal 

error by failing to consider its marks “in the context of the 

demand for the type of product and the size of the natural 

foods markets in which [Real Foods] competes,” Appellant’s Br. 44 (citations omitted), we find no merit in this 

position. Real Foods’ “registration does not contain limitations describing a particular channel of trade or class of 

customer,” so “[its] goods . . . are assumed to travel in all 

normal channels of trade.” Packard Press, Inc. v. HewlettPackard Co., 227 F.3d 1352, 1361 (Fed. Cir. 2000); see 

J.A. 53–208 (CORN THINS application), 209–26 (RICE 

THINS application). Thus, the TTAB properly determined that Real Foods’ proposed marks have not acquired 

distinctiveness. 

III. Frito-Lay’s Cross-Appeal 

The TTAB dismissed Frito-Lay’s claim that the proposed marks are generic. Frito-Lay, 2017 WL 914086, at 

*14. The TTAB identified the genus of the goods as 

“popped corn cakes” for the CORN THINS mark and “rice 

cakes” for the RICE THINS mark, and it further noted 

the “relevant public is the general consuming public who 

consume and eat the snack foods identified.” Id. at *4.

The TTAB then found Frito-Lay “failed to demonstrate by 

a preponderance of the evidence that CORN THINS and 

RICE THINS considered as a whole would be perceived by 

consumers as generic for, respectively, popped corn cakes 

and rice cakes.” Id. at *13. On cross-appeal, Frito-Lay 

argues “[Real Foods’] marks are generic.” Cross-

 

products have been featured on several blogs.” (footnote 

omitted)). 
20 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

Appellant’s Br. 15 (capitalization modified); see id. at 15–

22. Specifically, Frito-Lay contends the TTAB erred by 

finding “‘thins’ is not a generic term” “based solely on the 

fact that it is used within some third-party brand names” 

because “‘thins’ is commonly used as a generic term for 

snack food products, including crackers and crispbread 

slices.” Id. at 22. We agree that the TTAB erred, but not 

for the reasons asserted by Frito-Lay.8 

“[A] term can be generic for a genus of goods or services if the relevant public understands the term to refer 

 

8 We have “a special obligation” to satisfy ourselves 

of jurisdiction. Bender v. Williamsport Area Sch. Dist., 

475 U.S. 534, 541 (1986) (citation omitted). “A party that 

is not adversely affected by a judgment lacks standing to” 

cross-appeal. TypeRight Keyboard Corp. v. Microsoft 

Corp., 374 F.3d 1151, 1156 (Fed. Cir. 2004) (citing Pub. 

Serv. Comm’n v. Brashear Freight Lines, Inc., 306 U.S. 

204, 206 (1939)); see Phigenix, Inc. v. Immunogen, Inc., 

845 F.3d 1168, 1172 (Fed. Cir. 2017) (applying standing 

principles to appeals “from a final agency action”). Although the TTAB refused registration of Real Foods’ 

proposed marks, Frito-Lay has standing to challenge the 

TTAB’s finding of non-genericness because Frito-Lay is 

adversely affected by registrability on the supplemental 

register of a descriptive term that has not acquired secondary meaning and therefore may eventually become 

eligible for registration on the principal register, In re 

Bush Bros., 884 F.2d at 570; see 15 U.S.C. §§ 1052(f), 

1091(a), while a generic term cannot, see Royal Crown, 

892 F.3d at 1366. Further, a mark seeking supplemental 

registration, unlike principal registration, “shall not be 

published for or be subject to opposition.” 15 U.S.C. 

§ 1092. But see id. (explaining further that a mark seeking registration on the supplemental register is still 

subject to cancellation proceedings).
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 21

to a key aspect of that genus.” Royal Crown, 892 F.3d at 

1367 (ellipsis, internal quotation marks, and citation 

omitted). Genericness involves a “two-step inquiry” that 

asks: (1) “what is the genus of goods or services at issue,” 

and (2) “is the term sought to be registered or retained on 

the register understood by the relevant public primarily 

to refer to that genus of goods or services?” Princeton 

Vanguard, 786 F.3d at 965 (internal quotation marks and 

citation omitted); see id. at 968 (explaining that the TTAB 

should consider “the record evidence of the public’s understanding of the mark as a whole”). “The authority is 

legion that the question of registrability of an applicant’s 

mark must be decided on the basis of the identification of 

goods set forth in the application[,] regardless of what the 

record may reveal as to the particular nature of an applicant’s goods . . . .” In re Cordua, 823 F.3d at 602 (internal 

quotation marks and citation omitted). 

The TTAB improperly narrowed the genus of the 

goods at issue. The Applications initially identified the 

goods as “[c]rispbread slices predominantly of corn,” 

J.A. 53, and “crispbread slices primarily made of rice,” 

J.A. 209. During the opposition proceedings, Real Foods 

moved to amend the goods as “crispbread slices predominantly of corn, namely popped corn cakes” and “crispbread 

slices primarily made of rice, namely rice cakes,” J.A. 279

(emphases added), and the TTAB granted Real Foods’

motion to amend, Frito-Lay, 2017 WL 914086, at *21. In 

its Opinion, the TTAB defined the genus of the goods 

strictly by reference to the newly added portion of the 

amended language, identifying the genus as “popped corn 

cakes” for the CORN THINS mark and “rice cakes” for the 

RICE THINS mark. Id. at *4. 

While recognizing that the amendment narrowed the 

identification of goods, the TTAB failed to take into account in its determination of the genus under step one 

that the Applications show that popped corn cakes and 

rice cakes are types of crispbread slices, which, in turn, 
22 REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC.

the record defines as types of crackers. See Frito-Lay, 

2017 WL 914086, at *3 (relying on Frito-Lay’s concession

that “the record indisputably show[s] that popped corn 

and rice cakes are kinds of crispbreads” to grant the 

Motion to Amend (emphasis added) (internal quotation 

marks and footnote omitted)); see also J.A. 94 (defining 

“crispbreads” as “plain dry unsweetened cracker[s] made 

from crushed grain”), 169 (defining, in an online dictionary, “crispbread” as “[a] kind of flat, dry bread or cracker”); cf. In re Hotels.com, L.P., 573 F.3d 1300, 1303–04, 

1306 (Fed. Cir. 2009) (relying on dictionary definitions to 

define an individual term within a mark). 

This was error. As set forth in Real Foods’ Applications and the Motion to Amend, see J.A. 279, corn cakes 

and rice cakes are the species, not the genus, see Two 

Pesos, 505 U.S. at 768. In its Opinion, the TTAB failed to 

provide any reasoning for its conclusion that the narrowed identification of goods alone was the appropriate 

genus to use in its genericness analysis. The TTAB’s

error in identifying the proper genus at step one, thereby 

affected its analysis at step two. See Princeton Vanguard, 

786 F.3d at 965.9 Accordingly, we remand to the TTAB to 

 

9 For instance, the TTAB determined that the record did not establish “that ‘thins’ is a generic term for rice 

cakes or popped corn cakes” or that the term’s use “is so 

ubiquitous” within the genus, Frito-Lay, 2017 WL 914086, 

at *12, but later found that “the ubiquity of use for food 

products illustrates the term ‘thins’ is not inherently 

distinctive for thin food products,” id. at *17 (emphasis 

added). Had the TTAB identified a broader genus of 

goods, such a determination might bear on, inter alia, the 

ubiquity with which the term thins is used for that genus 

and whether the mark “refers to a key aspect of the 

genus.” Royal Crown, 892 F.3d at 1368. 
REAL FOODS PTY LTD. v. FRITO-LAY N. AM., INC. 23

reconsider its selected genus and conduct its genericness 

analysis in light of that genus. 

CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. Accordingly, the Opinion of 

the U.S. Patent and Trademark Office’s Trademark Trial 

and Appeal Board is

AFFIRMED-IN-PART, VACATED-IN-PART, AND 

REMANDED

COSTS

Costs to Frito-Lay.