“Texas Toast” Is a Generic Term for Croutons and Is Not Protectable by Trademark Law, Says U.S. 6th Circuit

The U.S. Court of Appeals for the Sixth Circuit held that the term “Texas Toast” is a generic expression when applied to croutons, and thus is not subject to protection under U.S. trademark law. T. Marzetti Co. v. Roksam Baking Co., No. 10-3784 (6th Cir. May 25, 2012).

In a prior case, the Sixth Circuit explained that, “If a mark is primarily associated with a type of product rather than with the producer, it is generic.” Nartron Corp v. STMicroelectronics, Inc., 305 F. 3d 397, 404 (6th Cir. 2002), cert. denied, 538 U.S. 907 (2003). In the present case–a dispute between two packaged food distributors who both used the term “Texas Toast” to refer to their crouton products–the court noted that “[w]itness testimony established that Texas toast is commonly understood to describe a large bread product, not a producer of bread products.” In addition, documents in the record demonstrated that restaurants, recipes, and websites frequently use the term Texas toast to describe a type of crouton. These facts, the Sixth Circuit concluded, adequately supported the district court’s holding that the term is generic for certain bread products, including sliced bread, frozen garlic bread, and croutons

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