Last week, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in Snyder’s-Lance, Inc. v. Frito-Lay North America, Inc., No. 19-2316 (March 17, 2021), granting Snyder’s Lance the right to pursue de novo review of its application to register the trademark PRETZEL CRISPS in district court after the matter had been reviewed by the Federal Circuit. The decision confirms that trademark holders may choose a new appellate route (Federal Circuit or district court) after each Trademark Board decision.
The matter started in 2004 when Princeton Vanguard, LLC (acquired by Snyder’s-Lance in 2012) filed an application to register the trademark PRETZEL CRISPS. The application was denied registration on the principal register but was allowed registration on the supplemental register. In 2009, Princeton Vanguard reapplied for registration, claiming the mark had acquired distinctiveness. Frito-Lay opposed the registration, arguing that PRETZEL CRISPS was generic. In 2014, the Trademark Board concluded PRETZEL CRISPS was generic.
Snyder’s-Lance was faced with a decision. Snyder’s-Lance could seek review of the Trademark Board’s 2014 decision in either the Federal Circuit (pursuant to 15 U.S.C. § 1071(a)) or a district court (pursuant to § 1071(b)). Snyder’s Lance opted to request review in the Federal Circuit. In 2015, the Federal Circuit agreed with Snyder’s-Lance, concluding the Trademark Board applied the incorrect legal standard in evaluating whether the mark was generic. The matter was remanded to the Trademark Board. In a 2017 decision, the Trademark Board again concluded that PRETZEL CRISPS was generic. This time, Snyder’s-Lance sought review of the decision in federal district court pursuant to § 1071(b).
After two years of district court proceedings, the district court held that jurisdiction was lacking and dismissed the case in light of Snyder’s-Lance’s earlier election of Federal Circuit review.
The Fourth Circuit reversed. The Court held that the plain language of the statute provides a trademark holder the right to choose its appellate route after each Trademark Board decision. The Court concluded that the trademark holder is not bound to follow a prior decision to seek review at the Federal Circuit, but that the prior review would be considered the law of the case. The case was remanded to the district court.