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T. Marzetti Co. Gets Texas Toasted By the Sixth Circuit

Previously, we discussed how one purveyor of steaks is trying to patent its way onto your dinner table. This week we have news of a food giant involved in a trademark controversy. The case involved Columbus, Ohio-based T. Marzetti Co., and their competitor, Roskam Baking Co. of Grand Rapids, Michigan.

Marzetti sued Roskam in the Southern District of Ohio, alleging that Roskam’s use of “Texas Toast” in connection with its croutons infringed Marzetti’s “Texas Toast” trademark for croutons. Roskam defended in large part on the ground that “Texas Toast” is a generic term for oversized croutons. The case eventually worked its way to the Sixth Circuit Court of Appeals which rejected Marzetti’s claim of trademark infringement.

Marzetti has been selling its famous frozen garlic bread under the name, “New York Brand: The Original Texas Toast” since 1995. In an attempt to replicate the success of its frozen garlic bread across other product lines, Marzetti began marketing different varieties of croutons in 2007.  Soon after Marzetti launched its “Texas Toast” crouton products, Roskam developed and marketed a similar product with the same “Texas Toast” description.

Marzetti originally attempted to register “Texas Toast” and “The Original Texas Toast” marks. Although the Trademark Office originally denied both applications, the rejections were withdrawn in November 2009. Marzetti had filed its original trademark infringement suit in federal court in Columbus in July 2009.

The trial court said that the term “Texas Toast” was a simple reference to big croutons. Marzetti then filed an appeal. Roskam in turn filed what are known as “oppositions” to the issuance of these marks with the.

In upholding the trial court’s decision, the Sixth Circuit pointed to a consumer-awareness survey conducted by Marzetti itself which found that consumers didn’t identify “Texas Toast” as a brand of croutons. Marzetti further undercut its position by referring to Texas toast croutons as a type of product and not as a brand in one of its annual reports. The mark was found to be generic, and thus not protectable.

The case is T. Marzetti Co. v. Roskam Baking Co., (6th Cir. May 25, 2012).

Source:Marzetti’s ‘Texas Toast’ Not a Protectable Trademark, Court Says,” by Victoria Slind-Flor, published at Businessweek.com.

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