Using Consumer Research to Measure Acquired Distinctiveness and Support Trademark Protection

Trademarks vary in distinctiveness. Some marks are inherently distinctive and receive strong protections, while others, particularly descriptive marks, require additional evidence to qualify for trademark protection.

In many cases, descriptive marks may achieve acquired distinctiveness when consumer recognition develops through extensive promotion and use. When consumers associate a mark with a single source, it may be considered distinctive. Evaluating this recognition is an essential step in determining whether a mark has developed distinctiveness over time.

Consumer surveys play a crucial role in assessing acquired distinctiveness for non-distinctive marks, providing evidence of consumer recognition and association with a single source in legal proceedings.

Acquired distinctiveness, including secondary meaning, is often a factor in assessing whether a non-distinctive mark may qualify for trademark protection. While secondary meaning specifically applies to descriptive marks, acquired distinctiveness can extend to other non-traditional marks and brand elements, such as the following:

Color Marks

In trademark law, color marks, which are not inherently distinctive, may qualify for protection when consumers associate a specific color or combination with a single source. For example, Tiffany & Co.’s signature robin’s egg blue has become widely recognized in connection with its jewelry packaging. Measuring consumer recognition through surveys can help evaluate whether a color mark has acquired distinctiveness.

A sound may function as a trademark when consumers strongly associate it with a specific brand. Examples include the MGM lion’s roar and recognizable commercial jingles. Consumer surveys provide empirical data to assess whether a sound has become an identifier of a single source.

Scent marks may be considered distinctive when they become uniquely associated with a brand or product. For example, the scent of Play-Doh has been recognized as a trademark. Because scent is not visually perceived, consumer surveys provide valuable data in evaluating whether consumers associate a particular scent with a single source.

A motion mark, such as an animation or moving logo, may function as a source identifier when it becomes widely recognized. An example is the Pixar lamp sequence, which is strongly associated with the studio. Consumer surveys help measure whether the motion mark has acquired distinctiveness in consumers’ minds.

Hologram marks may be considered distinctive when they serve as an identifier of a brand. For example, certain credit card brands use holograms as part of their security features. Consumer surveys can provide evidence of whether a holographic design is perceived as an indicator of source.

Texture marks may function as trademarks when a unique surface feel becomes associated with a brand. Distinctive textures, such as a soft-touch luxury product or a specific grip pattern, may create a sensory link for consumers. Survey research can assess whether consumers recognize a particular texture as a brand identifier.

A product’s distinctive shape or packaging, known as trade dress, may qualify for trademark protection when consumers associate it with a single source. For instance, the Coca-Cola bottle shape is widely recognized as identifying the brand. Consumer surveys play a critical role in proving acquired distinctiveness by demonstrating public association of a shape or packaging with a single source.

Pattern marks may acquire distinctiveness when a specific design becomes widely recognized as an indicator of source. For example, Burberry’s plaid pattern is strongly associated with its brand. Consumer surveys help determine whether a pattern mark has become a recognizable identifier.

Keegan & Donato Consulting has extensive experience designing and executing consumer surveys to assess acquired distinctiveness.

Our research provides empirical data that attorneys can use to evaluate whether relevant consumers associate a mark with a single source.

Do you have a case involving acquired distinctiveness?

Would your case benefit from data measuring whether relevant consumers associate your client’s mark with a single source?
Call us to find out how a consumer research study can strengthen your case.
Litigation Surveys & Survey Rebuttals to Help Drive Your Case Strategy Forward

Areas of Expertise

Likelihood of confusion

We use an experimental design (test vs. control) approach to deliver robust, statistically reliable evidence regarding likelihood of confusion.

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Strength of Mark

Survey evidence is a useful tool in proving (or disproving) the strength of a contested mark. Our tailored approach ensures that the most appropriate method is selected for your case.

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Secondary Meaning

Has your client’s mark acquired secondary meaning among consumers? Our survey evidence will provide the answer.

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Acquired distinctiveness

From product design to color, our survey evidence will help you determine how trade dress impacts consumers and your case.

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Lanham Act claims

We have extensive experience conducting surveys to test a wide variety of Lanham Act claims, including likelihood of confusion, secondary meaning, trade dress, and others.

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Consumer perception

Survey evidence can provide crucial information regarding how consumers perceive marks, product designs, colors, websites, and other stimuli.

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Consumer understanding

Our surveys provide thorough insights into how consumers process and understand marketing messages, labeling claims, disclaimers, and other communications.

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Rebuttal work

We have extensive experience rebutting surveys submitted by opposing experts covering a wide range of issues.

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