Flat-Track Snack Attack: Frito-Lay vs. Crackerjack
A Texas Rollergirl defends her name
What's in a name? Take "crackerjack." The word has been a compliment, the nickname for a navy uniform, a snack, even a model of bicycle helmet. And now it's setting a local athlete against one of the world's biggest food companies.
On one side is Colleen Bell, who competes in Austin's Texas Rollergirls flat-track Roller Derby league under the skate name Crackerjack. On the other is Frito-Lay North America Inc., the Plano-based subsidiary of PepsiCo that produces the snack Cracker Jack. Frito-Lay claims that "Crackerjack" is too much like "Cracker Jack." But Bell argues there are big differences between the two, and it's not just that her tattoos are permanent.
The argument began when the Women's Flat Track Derby Association – the sport's governing body – struck a deal with game designers Frozen Codebase to develop a flat-track derby video game. Like any good sports game, the developers wanted to use the names and likenesses of the real athletes. In Roller Derby, players are known by the nicknames they adopt, so a year ago, Bell applied to the U.S. Patent and Trademark Office to protect her skate name. "It's a big project, and I'm really just a little part of it," she explained.
Everything was going smoothly: The office reviewed the application and found there was no likelihood of confusion with any previously registered marks. On Dec. 9, 2008, the application was published in the Trademark Official Gazette for public review. Frito-Lay applied for an extension of the review period, but two days before the April 8 deadline, the company contacted Bell's attorney, Quinn Heraty. "Their attorney told me that the mark 'Cracker Jack' is so famous that they have an absolute monopoly on the word. Which, according to the law, they do not," said Heraty. When they asked that Bell withdraw her application, Heraty told them: "My client's not going to do that. There's no likelihood of confusion with your mark. She doesn't dress up as a sailor, and no one's going to mistake a Roller Derby skater with a box of candy."
Frito-Lay doesn't claim it invented the term "crackerjack," which was in common usage around the English-speaking world before 1893, when the Rueckheim brothers started selling their then-unnamed snack at Chicago's first World's Fair. But the company claims that it has priority over Bell's application. Frito-Lay spokeswoman Aurora Gonzalez explained, "We've opposed [the application] because we feel the importance of protecting that brand."
Even though the words are spelled differently, and the company accepts that Crackerjack only "resembles" Cracker Jack, it says the name is "confusingly similar" and could "dilute the distinctive quality" of its trademark. Frito-Lay didn't create that distinctive quality (the company bought it in 1997 from the Borden Food Corp.), but, Gonzalez said, "It's got a clearly established brand that was originally registered in 1906, so as far as brands with heritage go, this is one of those."
Bell has her own reputation. Taking her name from an old rock & roll standard, as Crackerjack she co-founded the Wisconsin league Mad Rollin' Dolls and is now president of the Women's Flat Track Derby Association. In 2008, she moved to Austin and now skates with the Hotrod Honeys and TXRG's touring team, the Tex-ecutioners. So far, no one has ever mistaken her for any combination of caramel, popcorn, or peanuts. "It's important to me to have control over this name, as it's part of the image I've created over the last five years, as a personality and as a skater and as a leader," she said.
While Heraty said Bell was originally willing to negotiate with Frito-Lay to make sure there is never any confusion, the firm was unresponsive and talks ended when it filed its opposition. Not surprising: The company said that because "crackerjack" means "a person or thing that shows marked ability or excellence," for Bell to use the term "misdescribes [her] abilities in competing in roller derby sport competitions." Heraty called that "not only unprofessional but an ad hominem attack. Crackerjack is one of the most skillful Roller Derby players ever."
It's not the first time a household name has tried to steamroll a derby team. Last May, Heraty represented Seattle's Rat City Rollergirls when Starbucks Corp. claimed that the league's logo (a cartoon of a skater inside concentric black and white circles) looked too much like the coffee company's logo (a picture of a mermaid inside concentric green and white circles). Starbucks backed down when it became clear that the only thing it was winning was bad publicity. Heraty is concerned that both cases are about a corporation co-opting the culture and strong-arming the general population. Crackerjack "is not an invented word like 'Exxon' or a contraction like 'Spam,'" she said. "It's a word in the dictionary; it has a generic meaning. ... We're not going to withdraw just because you asked us to."
So why not just change her name and avoid litigation? "Because I'm Crackerjack," Bell said. "I'm known as Crackerjack, and I think it would be a real shame to undo the work I've done as Crackerjack. I don't think anyone would stop calling me that."