No Trademark Issue in ‘Texas-Sized’ Croutons .

(CN) - The term "Texas Toast" is not entitled to trademark protection when describing a type of crouton, the 6th Circuit ruled.

Companies for years have used Texas toast to describe large, thick slices of bread, but T. Marzetti Co. began selling croutons under the name in 2007.

The croutons, labeled New York Brand the Original Texas Toast, are somewhat large and claim that they are made by cutting loaves of bread into "Texas-sized bites."

After seeing Marzetti's product, Roskam Baking Co. introduced its own line of Texas toast croutons under the Rothbury Farms brand.

Marzetti, an Ohio company, learned about the competing Roskam brand when it tried to register Texas toast as a trademark for use on croutons and tortilla strips. When Roskam ignored a cease-and-desist order, Marzetti filed a federal complaint against the Michigan-based Roskam.

U.S. District Judge Algenon Marbley in Columbus, Ohio, sided with Roskam after a bench trial, concluding that "Texas toast" was generic when applied to croutons, and that there was little likelihood of confusion between the Marzetti and Roskam brands.

A three-judge panel in Cincinnati affirmed last week.

"Witness testimony established that Texas toast is commonly understood to describe a large bread product, not a producer of bread products," Judge Martha Craig Daughtrey wrote for the court. "Marzetti acknowledged that Roskasm and other companies selling Texas toast frozen bread and garlic bread use the designation generically. Indeed, Marzetti itself invokes the generic use of Texas toast, to the extent that the back of its crouton packages refers to 'bigger size bites' and 'Texas-Sized bites.'"

The labels on the crouton packages also look substantially different from one another, according to the court.

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