T. Marzetti Company v. Roskam Baking Company

In testing for genericness, the 6th Circuit Court of Appeals gauge whether ”the public perceives the term primarily as the designation of the article."

Opinion (Daughtrey): The T. Marzetti Company (Marzetti) appealed the district court’s decision that “Texas Toast” was generic for croutons and therefore not protectable. Marzetti sells frozen Texas Toast under the housemark “New York Brand the Original Texas Toast.” In order to tie the success of their frozen Texas Toast to their croutons, Marzetti named their larger croutons “’New York Brand Texas Toast’ croutons.” In 2007, the Roskam Baking Company (Roskam) introduced to their line of croutons larger croutons, labeled “Texas Toast.” Marzetti claimed the trial court should have strictly applied the “primary significance test” to determine genericness. The Court of Appeals held that Sixth Circuit precedent does not require rigid adherence to the primary significance test, and that the test for genericness is whether ”the public perceives the term primarily as the designation of the article.” The Court of Appeals found that the public perceives “Texas Toast” as a reference to the size of the bread, and not a specific product; thus making the term generic and not protectable. Judgment was AFFIRMED.