On February 10th, Frito-Lay filed suit in the Eastern District of Texas against private-label specialist Ralcorp and accused it of infringing Frito-Lay’s federally-registered trademark for bowl-shaped tortilla chips (below) by manufacturing, on behalf of Wal-Mart, MEDALLION BOWLZ tortilla chips.
In this regard, Frito-Lay contends that its design mark (U.S. Reg. No. 2,766,278) is embodied in its TOSTITOS SCOOP! tortilla chips (on left) and that the MEDALLION BOWLZ chips (on right) are confusingly similar.
Frito-Lay further alleges, “on information and belief,” that Ralcorp infringed three utility patents relating to the manufacture of such chips.
On the same day Frito-Lay filed its suit, Ralcorp counter-sued in the Eastern District of Arkansas for declaratory judgment of non-infringement and cancellation of Frito-Lay’s design mark based on assertions that (a) the “bowl-shaped configuration” of the chip is “functional” by allowing the user to use the chip as a bowl for salsa, dip, etc., and thus not allowed as a trademark, and (b) the design mark has been abandoned because TOSTITOS SCOOP! chips do not, according to Ralcorp, incorporate the particular aspects of the mark. Not surprisingly, the parties are presently engaged in motion practice with regard to the proper forum for the litigation.
Ralcorp’s attacks on Frito-Lay’s design mark — especially the “functional” claim — have some heft. That said, if Frito-Lay obtains evidence of actual consumer confusion then its claims will gain strength. All in all, this will be an interesting case to follow and epitomizes the battle between established, national brands and private label / house brands that have increased since the 2008 economic downturn.