Last month, Adnan Syed, whose murder charges are discussed in the popular podcast, “Serial”, was granted a new trial by the Maryland Court of Special Appeals. However, as is referenced in TCMA.com’s recent blog post, the team behind Serial Podcast, LLC didn’t fare as fortunate. The TTAB issued an opinion refusing to register “Serial” as a trademark, instead declaring it a generic term.
To determine whether a mark is generic, the Trademark Office considers how members of the relevant audience perceive the mark in the context of the relevant “genus” of goods or services. Yet, the evidentiary record in this matter lacked any consumer survey or poll. Instead, the Examining Attorney relied on current dictionary definitions and articles that used the term “serial” to refer to podcasts with several installments.
The Serial podcast has achieved widespread exposure and success, being the fastest podcast to ever reach 5 million downloads and winning a Peabody Award. With such widespread recognition, it is plausible that “Serial” could have benefitted from a genericness survey. A genericness survey typically seeks to assess whether relevant consumers consider a mark to be a common name or a brand name. If consumers believe the mark is a common name (rather than associating it with a specific product or service), it provides strong evidence that the mark is generic. Similarly, if consumers believe the mark is associated with a single brand, the evidence is strong that the mark is not generic. At Applied Marketing Science (AMS), we regularly conduct surveys to evaluate whether or not a trademark or trade dress is generic. Our genericness surveys have been submitted and accepted as evidence in litigation matters involving a broad range of products and services.