Frito-Lay tries to block Crackerjack


Frito-Lay has filed an opposition to the registration of Crackerjack‘s trademark with the USPTO.

Crackerjack is one of the founders of the Mad Rollin’ Dolls roller derby league and is the president of the WFTDA,  an association of 78 roller derby leagues from every corner of the United States.

Crackerjack currently skates with the Hotrod Honeys of the Texas Rollergirls. Coincidentally, Frito-Lay is based in Plano, Texas. This reminds me of how Starbucks, which calls Seattle home, tried to jam up its hometown roller derby league, the Rat City Rollergirls, over a trademark issue.

Frito-Lay filed the opposition yesterday, April 8, 2009. Here’s a summary of their arguments as to why Frito-Lay would be harmed if Crackerjack‘s mark was registered with the USPTO.

According to Frito-Lay, its snack foods are marketed and sold in tremendous quantities on a nationwide basis. Frito-Lay sells so much candied popcorn each year that, according to Frito-Lay’s attorney, Jeanette Zimmer, it entitles them to the exclusive use of the word “crackerjack“.

Frito-Lay is opposing the registration of Crackerjack as a service mark in connection with roller derby competitions because:

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”. (Its origin: 1890–95, Americanism, earlier crackajack, rhyming compound based on crack (adj.); and jack, “chap, fellow”.)
- Frito-Lay believes that Crackerjack should not be allowed to register her name in connection with roller derby because it describes (or, as Frito-Lay’s lawyer shockingly says, “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.
- According to Frito-Lay, Crackerjack, when used in connection with roller derby, will cause confusion, mistake, or deception.
- However, during the application process, the USPTO specifically said that there were no similar or pending marks in the USPTO database that would bar Crackerjack‘s registration for the mark as a roller derby competitor.

For a video manual on the difference between Crackerjack and… everything else, click here.

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.

See also: Richard Branson claims to own all uses of “virgin”

Addendum: For an interesting etymology of the word “crackerjack” by Barry Popik,  click here. Barry Popik is contributor-consultant to the Oxford English Dictionary, Dictionary of American Regional English, Historical Dictionary of American Slang, and the Yale Dictionary of Quotations.



posted on Thursday, April 9th, 2009 at 5:54 pm and is filed under 2009, WFTDA, crackerjack, frito-lay, roller derby trademarks, roller-derby, snackfoods vs sports, sports v snackfoods, trademarks, wtf. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

5 Responses to “Frito-Lay tries to block Crackerjack”

  1. Dale Davidson contributes:
    April 10th, 2009 at 4:36 pm

    I have been researching the composer of “Take Me Out To The Ballgame,” Jack Norworth, for several years. I’m also a roller derby fan. Jack is most probably rolling in his grave over this one! If Crackerjack the skater needs me to fly to Texas as a witness — since the product “CrackerJack” owes it longevity to the song Jack wrote — have her contact me through Gotham Girls. I’m known as k.d. Caustic there. (Yes, we all have derby names. In fact Jack Norworth wasn’t his birth name, either!)

  2. LIKELIHOOD OF CONFUSION® » General » Candy coated popcorn, peanuts and a prize! That’s what you get from – contributes:
    April 13th, 2009 at 10:49 am

    [...] Quinn Heraty reports on the trademark battle to make us forget SPAM v. Spamarrest – the CRACKERJACK derby: What a prize! [...]

  3. Snake Bite contributes:
    April 15th, 2009 at 10:54 am

    This is perfect fodder for media. Quirky and just serious enough to get a ton of e-mails sent to the legal department at Frito-Lay. only focusing on Dallas media (home to two leagues of 8 teams and over 150 girls) and Austin media could get poor Crackerjack som great support.

  4. slyfox contributes:
    April 20th, 2009 at 4:36 pm

    Yet another reason why the legal profession has such a low public image.
    Unfortunately, this probably will be decided by whomever has the best lawyers.

    [Ed.: Thanks Sly Fox. Great comment to leave on a lawyer's website.]

  5. Crackerjack (2002) | All Films Blog contributes:
    July 10th, 2011 at 10:35 am

    [...] heratylaw.com This entry was posted in all. Bookmark the permalink. ← Avia Vampire Hunter (2005) Bill [...]

Archive Category