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A trademark is generic when it is used to identify a category as a whole rather than identify the source for a specific product or service. Generic marks therefore, fail to merit trademark protection. Even marks that have trademark protection may lose it if, through extensive use by other brands within the category, they become associated with a category rather than a specific brand.
A genericness survey typically seeks to assess whether relevant consumers consider a mark to be a common name or design, or a brand name or design. 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.
Founded in 2005, Harper Litigation Consulting and Research has been trusted by more than 165 law firms. Ms. Rhonda Harper is a courtroom proven expert witness, having provided expertise in virtually every circuit, along with JAMS, TTAB, PTO, and FTC. She has also provided testimony for both the prosecution and defense in federal and state criminal trials for offenses ranging from fraud to murder. As a former Fortune 100 chief marketing officer and an adjunct marketing professor, she is uniquely court-qualified in many areas, including intellectual property infringement surveys, misleading and fraudulent advertising, licensing, defamation, and commercial reasonableness. 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.