Tabberone is pronounced tab ber won not tay ber own

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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Dial-A-Mattress v Page, 880 F.2d 675 (2nd Cir 1991)

It is clear that Dial-A-Mattress could not claim trademark rights in the word "mattress" used solely to identify its company or its product. Nor would protection be available if the word was used for these purposes with a spelling variation, such as "MATTRES", that did not change the generic significance for the buyer. See Miller Brewing Co. v. Heileman Brewing Co., 561 F.2d 75 (7th Cir.1977) (LITE used for light beer), cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.*678 2d 772 (1978) ; American Druggists' Syndicate v. United States Industrial Alcohol Co., 2 F.2d 942 (D.C.Cir.1924) (AL-KOL used for rubbing alcohol); 1 J. McCarthy, Trademarks and Unfair Competition § 12:12(B) (2d. ed. 1984). It is equally clear that a second comer, though entitled to use a generic term already used by its competitor, may be enjoined from passing itself or its product off as the first user or that user's product and may be required to take steps to distinguish itself or its product from the first user or that user's product. See Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938) (shredded wheat).