1. Noteworthy Developments at the TTAB
Jeff Handelman
April 6, 2018
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2. Consumer surveys playing an increasingly important role
Surveys at the TTAB
Consumer surveys playing an increasingly important role
Recent decisions provide important lessons for survey design and methodology
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3. In re General Mills IP Holdings II, LLC, 124 U. S. P. Q
In re General Mills IP Holdings II, LLC, 124 U.S.P.Q.2d 1016 (TTAB 2017)
General Mills filed an application to register the color yellow on product packaging for breakfast cereal – the Cheerios box
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4. Protectibility of Color Marks
Color marks are never inherently distinctive and cannot be registered without a showing of secondary meaning
General Mills submitted a consumer survey

5. General Mills Survey Survey conducted via computer
Key question: “If you think you know, what brand of cereal comes in this box”

6. TTAB Criticism of Survey Design
With its singular use of the word “brand” (“what brand of cereal comes in this box”), the question suggests that a singular answer is expected.
Respondents likely believed that only a single brand should be named.
Survey results do not support a finding of secondary meaning.

7. General Mills Decision (continued)
Third-party use of yellow for cereal boxes undermined claim of “substantially exclusive use” of yellow color.
Goes to “substantially exclusive” prong of test
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8. Royal Crown Company, Inc. v. The Coca-Cola Co. , Opposition No
Royal Crown Company, Inc. v. The Coca-Cola Co., Opposition No (consolidated) (TTAB May 23, 2016)
TCCC filed 17 applications for registration of marks containing the term “Zero”
E.g., COKE ZERO and SPRITE ZERO.
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9. Royal Crown Company (continued)
Royal Crown opposed
ZERO is generic, or
ZERO is merely descriptive and without secondary meaning.
Issue: must “Zero” be disclaimed.

10. Coca-Cola Survey – Test Cell
Have you ever seen or heard of any soft drink with the term ZERO as part of its name or not?
Do you associate the term ZERO with the products of one particular company or more than one company? [order of alternatives rotated]

11. Coca-Cola Survey – Control Cell
Same questions repeated using DIET
Have you ever seen or heard of any soft drink with the term DIET as part of its name or not?
Do you associate the term DIET with the products of one particular company or more than one company? [order of alternatives rotated]

12. Coca-Cola Survey Results
61% of respondents associated ZERO with one company
6% of respondents associated DIET with one company
Net secondary meaning level of 55% held to support a finding of secondary meaning.

13. Royal Crown submitted no survey
TTAB Decision
TCCC’s survey “validates the significant sales and advertising numbers”
Third-party use of ZERO in a mark is inconsequential, when compared with magnitude of TCCC’s use.
Royal Crown submitted no survey

14. Amended TTAB Rules (2017):
Parties may submit testimony in the form of an affidavit or declaration without the need for consent from the adverse party – subject to the right of cross examination.
Discovery requests can no longer be served up to the last day of the discovery period. Instead, all discovery requests must be served early enough in the discovery period to allow for responses prior to the close of discovery.

15. Questions?
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