A trademark has acquired secondary meaning when it becomes recognized as a specific good or service originating from a single source. Trademarks that are considered to be merely descriptive of the goods or services with which they are used are typically denied protection and deemed unregistrable unless secondary meaning can be shown.
The issue of secondary meaning relies on relevant consumers’ mental associations.[1] Circumstantial evidence from which one may infer these associations (e.g. exclusivity, length and manner of use, amount and manner of advertising, amount of sales and number of customers, established place in the market, proof of intentional copying) is one form of evidence that may be used in an attempt to establish secondary meaning. However, consumer surveys are considered by many circuits to be the most persuasive evidence to establish secondary meaning since they directly measure the extent to which relevant consumers’ associate a mark with a single source. [2]
A secondary meaning survey will typically ask relevant consumers whether they associate a word, name, symbol with one company or more than one company. If survey respondents associate the mark at issue with one company rather than with the class of products as a whole, it provides strong evidence that it has acquired secondary meaning. Although survey respondents may be asked who puts out the goods or services associated with the mark, it is not always necessary. The Trademark Manual of Examining Procedure states that, “this may be an anonymous producer, since consumers often buy goods without knowing the personal identity or actual name of the manufacturer.” This is known as the anonymous source rule.
Applied Marketing Science regularly conducts secondary meaning surveys for high stakes litigation matters. To learn more, or to talk to one of our secondary meaning survey experts, please contact us.
----------------------------------------------------
[1] McCarthy on Trademarks and Unfair Competition, 4th Ed. §15.5.
[2] Id.