Trademarks fall on a spectrum of increasing distinctiveness from (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful. Platinum Home Mortg. Corp. v. Platinum Fin. Grp., 149 F.3d 722, 727 (7th Cir. 1998). 

Descriptive terms, which describe the ingredients, characteristics, or qualities of an article, are protected only if the holder can establish that the mark has acquired a secondary meaning. U.S. Pat. & Trademark Off. v. Booking.com B. V., 591 U.S. 549, 553 (2020). Secondary meaning attaches to marks that have “achieve[d] significance 'in the minds of the public' as identifying the applicant's goods or services.” Id. (quoting Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 211 (2000)). “Holiday Inn,” for example, describes a vacation accommodation, but most people associate the term with one specific brand. See also Uncommon, LLC v. Spigen, Inc., 926 F.3d 409, 420 (7th Cir. 2019) (“5-Hour Energy . . . describes the caffeinated shot, but is readily associated by most customers with one maker.” (internal quotations omitted)). 

On the other hand, generic terms, which are the terms “commonly used as the name of a kind of goods,” Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir. 1986), may not be trademark protected “under any circumstances,” Miller Brewing Co. v. G. Heileman Co., 561 F.2d 75, 79 (7th Cir. 1977). See also Ty Inc. v. Softbelly's Inc., 353 F.3d 528, 531 (7th Cir. 2003) (explaining, in dicta, that finding a trademark has become generic is a “fateful step” not ordinarily taken “until the trademark has gone so far toward becoming the exclusive descriptor of the product that sellers of competing brands cannot compete effectively without using the name to designate the product they are selling”). 

A term need not be the exclusive descriptor of a product to become generic. Rather, a trademark plaintiff “may not prevent [the] defendant from using [a mark] simply because there are other titles defendant could use.” Tech. Publ'g Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1141 (7th Cir 1984); see also 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 12:9 (2006) (“Any product may have many generic designations. Any one of those is incapable of trademark significance.”). A generic term is not made less generic by the availability of other terms. Tech. Publ'g, 729 F.2d at 1141.

Whether a registered mark has become a generic term turns on the mark's “primary significance” to the relevant public. 15 U.S.C. § 1064(3) (“The primary significance of the registered mark to the relevant public . . . shall be the test for determining whether the registered mark has become the generic name of goods or services.”); see also Booking.com, 591 U.S. at 556 (applying “primary significance” test to determine whether mark was generic).

To determine the primary significance of a term, a court may consider “consumer surveys, … dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a term's meaning.” Booking.com, 591 U.S. at 551 n.6. Teflon surveys are the “most judicially accepted format for testing for genericness.” McCarthy § 12:16. In a Teflon survey, the survey “begins with a brief lesson explaining the difference between brand names and common names. It then asks respondents to classify a series of words, including the trademark at issue, as either brand names or common names.” Elliott v. Google, Inc., 860 F.3d 1151, 1160 n.7 (9th Cir. 2017). 

PIZZA PUFF

Iltaco, a Chicago-based food company, began selling a stuffed sandwich product that is similar to a calzone but made from a flour tortilla wrapped around pizza toppings and can be fried or baked, in 1976 with the “Pizza Puff” mark which it later registered as a trademark on May 26, 2009. Iltaco also obtained a registered trademark for “Puff” as of May 3, 2022. Iltaco advertises its stuffed sandwich products under the “Pizza Puff” and “Puff” trademarks.

The Little Ceasars pizza chain launched its Crazy Puffs product (which are small, baked pizza dough cups filled with pizza ingredients and topped with cheese) in March 2024. Little Caesars owns numerous federal trademark registrations for its various “Crazy” products, and in May 2024 finalized its federal registration for the “Crazy Puffs” mark for which an examining attorney with the U.S. Patent and Trademark Office (“USPTO”) searched the database of registered and pending marks and found no likelihood of confusion between “Crazy Puffs” and any prior registered or pending marks of third parties, including Iltaco. During prosecution, Little Caesars also disclaimed the exclusive right to use “Puffs” as part of its trademark registration. 

Iltaco sued Little Ceasars for trademark infringement, and moved for a preliminary injunction. The district court granted a preliminary injunction against the use of “Pizza Puff” by Little Ceasars, but denied the motion as to “Crazy Puffs” and “Puff.”

On appeal, the Seventh Circuit considered whether the primary significance of “Pizza Puff” to consumers is as a generic term describing a class of products or a distinctive term indicating association with a particular brand. Tamae Co. Inc. v. LC Trademarks Inc., Nos. 24-3317, __ F.th __ (7th Cir. Jan. 16, 2026). 

     Little Caesars presented extensive evidence to show that the primary significance of Iltaco's incontestable “Pizza Puff” mark to consumers is as a generic term. First, Little Caesars presented the results of a Teflon survey, showing 83.3% of consumers of dough-based, pizza-ingredient-filled foods perceive “pizza puff” as a common (i.e., generic) term, while only 12.7% perceive the term as a brand name.

The Seventh Circuit noted that although its decision in Ty, 353 F.3d at 531, had said, in dicta, that as few as ten percent of consumers associating a mark with an owner's brand could result in consumer confusion—the “primary significance” of a product to consumers with respect to genericness “requires far more than ten percent.” Indeed, the McCarthy treatise at § 12:6 stated that “if a survey showed that 75 percent of the public regard the word as generic, then that is its majority usage and its 'principal significance.'” 

Viewed properly, survey data showing over 80 percent of relevant consumers perceive “pizza puff” as a generic term presents strong evidence of its genericness. See McCarthy § 12:6.

Little Caesars also presented several definitions of “pizza puff” drawn from crowd-sourced dictionaries to show the term has acquired a generic meaning. For example, the website at definitions.net describes a pizza puff as: “A dough pouch filled with the ingredients of a pizza, such as cheese, pizza sauce, sausage, and pepperoni, and usually deep fried.” 

A number of federal courts have found crowd-sourced definitions unreliable and even inadmissible as evidence of a term's technical definition or as the basis for an expert's testimony. See, e.g., Badasa v. Mukasey, 540 F.3d 909, 909 (8th Cir. 2008) (noting Wikipedia definition of an Ethiopian travel document was unreliable evidence of party's immigration status); Advanced Mech. Servs., Inc. v. Auto-Owners Ins. Co., No. 14-CV-388, 2017 WL 3381366, at *4 (W.D. Ky. Aug. 4, 2017) (finding expert witness's opinion inadmissible because expert relied on Wikipedia definition); Fleishman v. Cont'l Cas. Co., No. 09 C 414, 2011 WL 5866264, at *4 (N.D. Ill. Nov. 22, 2011) (finding inadmissible Wikipedia definition of “aneurysm” as evidence of plaintiff's injury). Similarly, the Fourth Circuit found a Sixth Amendment violation in a criminal trial where the jury independently obtained and considered a Wikipedia definition of an element of the crime at issue. United States v. Lawson, 677 F.3d 629, 641 (4th Cir. 2012). But where a crowdsourced definition is offered to show the significance of that term to members of the public, at least one federal court has relied upon the definition. See Hawkins v. City of Phila., 571 F. Supp. 3d 455, 458 (E.D. Pa. 2021) (relying on crowd-sourced dictionary's definition of a slang term). Thus, while crowd-sourced dictionary definitions may unreliably evince a term's correct or technical definition, they more reliably represent what a term means to members of the public, which is what the genericness analysis is concerned about. 
     ***
Crowd-sourced dictionary definitions inform that question, so they are relevant to our analysis and weigh in favor of genericness. Still, the fact that anyone can edit a crowd-sourced dictionary definition bears on the weight of Little Caesars' dictionary evidence.

Little Caesars also introduced the five USPTO registrations of third parties using “pizza puff” in their USPTO applications and registrations to indicate generic use of the term in the industry. Cf. Spraying Sys. Co. v. Delevan, Inc., 975 F.2d 387, 393 (7th Cir. 1992) (finding the suffix “JET” descriptive of a hose product based in part on fifty other registrations using “JET” to describe similar high-velocity water stream products). While five was an insufficient number of registrations on their own to be dispositive, it did “indicate other producers of similar products primarily think of 'pizza puff' as a name for a class of foods rather than a particular brand within that class.” 

The Seventh Circuit found that Little Caesars' consumer survey data, dictionary definitions, and third-party trademark registrations showing generic usage of "pizza puff" were sufficient to overcome the presumption of trademark validity for PIZZA PUFF which Iltaco failed to rebut for purposes of showing a likelihood of success on the merits at trial for a preliminary injunction. 

     Even if “Pizza Puff” is sufficiently distinctive to merit protection under the Lanham Act, Iltaco cannot prevail without showing how it will successfully counter Little Caesars' fair use defense. A defendant in a trademark infringement case may invoke the “fair use” defense by demonstrating that (1) it used the phrase at issue in a non-trademark capacity, (2) the phrase is descriptive of its goods and services, and (3) it used the phrase “fairly and in good faith” only to describe its goods. § 1115(b)(4); see also Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 951 (7th Cir. 1992); Packman, 267 F.3d at 639.

Here, there was no dispute that Crazy Puffs are filled with pizza ingredients like cheese, tomato sauce, meat, and vegetables, and the evidence of record included testimony that “Crazy Puffs” are “light and airy muffins” that are “puffy.” 

This evidence fairly shows that “Pizza Puff” describes a Crazy Puff, which is a puffy and airy muffin containing pizza ingredients. And “Pizza Puff” appears as part of the phrase “4 Hand-Held Pizza Puffs,” which is clearly describing the quantity, size, and type of food customers can expect when they purchase a Crazy Puff.

The Seventh Circuit concluded that the district court abused its discretion by granting a preliminary injunction as to “Pizza Puff,” but did not abuse its discretion in denying the injunction regarding “Crazy Puffs” or “Puff.”

Thomas P. Howard, LLC is experienced in litigating trademarks nationwide including in Colorado.