Premier Nutrition, Inc. v. Organic Food Bar, Inc.

MEMORANDUM *

Defendant Organic Food Bar, Inc. appeals the district court’s order granting summary judgment in favor of Plaintiff Premier Nutrition, Inc. The district court concluded that the term “Organic Food Bar” is generic and therefore not protected under trademark law. We affirm.

“[T]he ultimate test of whether a trademark is generic” is “how a term is understood by the consuming public.... ” Filipino Yellow Pages, Inc. v. Asian Journal Publ’ns, Inc., 198 F.3d 1143 , 1148 (9th Cir.1999). In evaluating the public’s understanding, we favor the “who-are-you/ what-are-you” test: “A [protectable] mark *724 answers the buyer’s questions ‘Who are you?’ ‘Where do you come from?’ ‘Who vouches for you?’ But the generic name of the product answers the question ‘What are you?’ ” Id. at 1147 (internal quotation marks omitted).

Here, the term “Organic Food Bar” answers the question “What are you?” and therefore describes a type of product. “[I]f the primary significance of the trademark is to describe the type of product rather than the producer, the trademark is a generic term and cannot be a valid trademark.” Id. (internal quotation marks omitted). Premier’s direct and circumstantial…