In T. Marzetti Company v Roskam Baking Company , the Sixth Circuit decided that the mark “Texas Toast” is not entitled to trademark protection for a specific type of crouton. Following closely on the heels of the Circuit’s recent Maker’s Mark trademark ruling, the Court continues to develop its jurisprudence on trademark infringement issues, particularly in the context of food and beverage.
Though the history of Texas Toast croutons may not be quite as interesting as Kentucky bourbon, the Court walks through that in the opinion in order to provide context for this crouton battle. Ultimately, the Court agreed with the district court that the mark “Texas Toast” was generic and thus not protectable. Because whether a mark is generic is a question of fact, the Court’s review was for clear error and the district court had adequately supported its factual findings. Under governing Sixth Circuit law, the term is generic and thus ineligible for trademark protection if the mark is primarily associated with a type of product rather than with the producer. Be sure to remember this the next time you have a salad!