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Taking a bite out of a trademark infringement claim
Trademark owners may think that obtaining federal registration gives them reliable protection for their marks, but protection isn’t absolute. Registration creates only a rebuttable presumption of validity. A recent case illustrates how that presumption can be defeated if the mark has become generic.
Meat of the matter
Illinois Tamale Co. Inc. (Iltaco) is a Chicago-based food company that sells its pizza puff product (similar to a calzone but made with a flour tortilla) and a line of stuffed sandwiches nationwide. It has registered trademarks for “Pizza Puff” and “Puff” and advertises its products under the marks.
In 2024, national pizza chain Little Caesars launched its new “Crazy Puffs” product — small, baked pizza dough cups filled with pizza ingredients and topped with cheese. The company already had many other “Crazy” marks, which it has used extensively in its marketing since the 1980s. Its marketing materials for Crazy Puffs included a line reading “4 Hand-Held Pizza Puffs.”
Iltaco sued Little Caesars for trademark infringement. It also sought a preliminary injunction blocking the company from using “Crazy Puffs,” “Pizza Puff” and “Puff” to sell its product. The trial court granted the injunction but only for “Pizza Puff.” Little Caesars appealed.
Recipe for defeat
A preliminary injunction is appropriate only when the party seeking it shows it’s likely to succeed in its underlying legal claim (here, infringement). In the trademark context, that requires showing that the mark was protectable and the defendant’s use of it was likely to cause confusion among consumers.
The U.S. Court of Appeals for the Seventh Circuit found that Iltaco failed to establish a sufficient likelihood that it would succeed with its infringement claim. Trademark infringement claims fail if the mark is generic — and the court cited substantial evidence that “Pizza Puff” was generic.
Whether a registered mark has become a generic term depends on its “primary significance” to the relevant public. Little Caesars presented extensive evidence that the primary significance of “Pizza Puff” to consumers was as a generic term describing a class of products. For example, a survey showed that 83.3% of consumers of dough-based, pizza-ingredient-filled foods perceived “pizza puff” as a common term; only 12.7% saw it as a brand name.
Little Caesars also submitted several definitions of the term from crowd-sourced dictionaries showing the term has acquired a generic meaning. And it introduced evidence of third parties using “pizza puff” in their U.S. Patent and Trademark Office applications and registrations to indicate widespread generic use in the industry.
Court stuffs injunction
The Seventh Circuit concluded that Iltaco’s evidence was insufficient to show a likelihood of success on the merits. Therefore, the court reversed the preliminary injunction for “Pizza Puff.”
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