Secondary Meaning Survey Expert Witness

Secondary meaning is achieved when relevant consumers associate a mark with one, and only one, source. One way to determine whether a mark has achieved secondary meaning is by conducting a survey among the relevant consumers. A second method is to assess the mark against a muti-factor analysis. Each of the federal circuits have formulated a multi factor test.

One of the most common reasons why a trademark application may be refused on the Principal Register of the United States Patent & Trademark Office (USPTO) is because the mark is not inherently distinctive and it is lacking acquired distinctiveness. Trademarks that are merely descriptive of the goods or services and lacking in acquired distinctiveness or not inherently distinctive will only be registered on the Supplemental Register. A term that is descriptive may acquire unique significance overtime through the trademark owner's usage. If this occurs, then the relevant public will associate the trademark with one source.