Frito-Lay Challenges Austin Roller Girl Over "Crackerjack" Name

In their opposition, filed April 8, Frito-Lay essentially alleges that their tasty caramel popcorn treat runs the risk of being confused with a bunch of tough ladies who try to bruise each other while skating around a circular rink (while receiving the occasional public paddling). More specifically, New York City-based firm Heraty Law, which is representing Bell, points out that the opposition has four basic points:

1. The word “crackerjack” Is Merely Descriptive. Frito-Lay rightly acknowledges that “crackerjack” is not a fanciful word that Frito-Lay invented, and it is not unique to Frito-Lay. “Crackerjack” is a word in the english language, which means “a person or thing that shows marked ability or excellence”. Frito-Lay believes that Crackerjack should not be allowed to register her name in connection with roller derby because it ... “misdescribes” Crackerjack’s abilities in competing in roller derby competitions. Because Frito-Lay contends that the word “crackerjack” is merely descriptive, Frito-Lay believes it should not be afforded trademark protection by the USPTO.

2. Likelihood of Confusion. Frito-Lay claims that the members of the public who purchase candy will likely confuse the roller derby competitor Crackerjack with the candied popcorn confection Cracker Jack.

3. Dilution. Frito-Lay claims that the use of “crackerjack” in connection with roller derby will either:
3a. somehow, in the public’s mind, lessen the connection between the mark Cracker Jack and candied popcorn; (this is called “blurring”) and/or
3b. weaken the value of the mark Cracker Jack in connection with candy through an unsavory or unflattering association with roller derby. (this is called “tarnishment”)

4. False Suggestion of a Connection. Frito-Lay claims that Crackerjack is attempting to forge a false connection between her roller derby competitions and the candied popcorn confection Cracker Jack... According to Frito-Lay, “persons” are likely to believe that Crackerjack the roller derby competitor is in some way legitimately connected with Frito-Lay, and this would cause harm to Frito-Lay.