The concept of secondary meaning is straightforward in intellectual property matters. A secondary meaning survey typically seeks to assess whether a “significant” or “substantial part” of the customer class associates a trademark or trade dress with a single source.
Secondary meaning exists if respondents associate the trademark or trade dress with only one company. Although not required (a.k.a "anonymous source rule), secondary meaning surveys may ask the third question (“what company”) as a way to identify whether the trademark or trade dress is typically associated with the plaintiff or the defendant.
The measurements from these questions can be compared against standard sources or past precedents, to evaluate whether or not secondary meaning is present in sufficient quantity as to be considered substantial or relevant.
Retained by 100+ law firms since 2005, Ms. Harper is courtroom proven. She has been engaged to provide 65+ surveys, 80+ reports, 30+ rebuttals, 45+ depositions, and serve in 20+ trials. She has provided services to both Plaintiffs (60%) and Defendants (40%) across trademark and trade dress, packaging, merchandising, defamation, licensing, breach of contract, advertising, and commercial reasonableness. She has provided services in virtually every Circuit as well as JAMS and TTAB.
Ms. Harper's 30+ year career includes serving as a Fortune 100 Chief Marketing Officer. Having authored two books, she is a former Adjunct MBA Marketing Professor.
Ms. Harper is routinely retained to formulate expert surveys, conduct rebuttal critiques, or construct rebuttal surveys to show the potential difference in results with properly designed and executed surveys. She has extensive experience and a deep understanding of survey design, sampling, question construction, data analysis, and methodological pitfalls that introduce bias or systematic error.