Division 2 of the National Court of Appeals on Federal Civil and
Commercial Matters reversed the lower court's decision that had
ordered Pepsico de Argentina to stop using trademark
"NACHOS!" and admitted defendant's counterclaim
requesting that said registration be cancelled.
Pepsico de Argentina used the expression "DORITOS
NACHOS" to identify its seasoned corn tortilla chips. Cerealko
S.A., owner of the trademark "NACHOS!" in International
class 30, filed a lawsuit against Pepsico de Argentina seeking to
enjoin such use. The appellate court stated that an expression may
be considered as the usual designation of a product or service when
it is so used in the ordinary language of the country's
inhabitants, regardless of the criteria of Spanish language
institutions and of its inclusion in language dictionaries. In this
particular case, the word "NACHOS", originated in Mexico,
had a specific meaning in Argentina that referred to
"small triangular toasts made of cornmeal, originally from
Mexico, which are usually eaten with diverse sauces".
Therefore, the court considered that there was no legal impediment
for Pepsico de Argentina to continue using such word jointly with
its trademark "DORITOS".
The court also declared the trademark "NACHOS!" null
and void on the basis that it was not proved that such term had
become the usual designation of the product after plaintiff's
application for "NACHOS!" was filed in 1999.
This decision was rendered on December 22, 2011 in re
"Cerealko S.A. c/ Pepsico de Argentina
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