Trademarks come in many varieties. Some marks are fanciful, and are afforded strong protections due to their inherently distinctive nature. Other marks fall on the other end of the spectrum, their descriptive nature making it difficult to secure USPTO protections.
In certain circumstances, descriptive marks can gain traction in the public mindshare through extensive promotion and use in the marketplace. This recognition among consumers is known in trademark law as “acquired distinctiveness.” In practice, acquired distinctiveness describes a situation wherein consumers come to associate a descriptive mark with a single source due to extreme familiarity with the mark and the brand behind the mark. In such a circumstance, the mark is no longer considered descriptive, since consumers primarily associate it with a single company.
Acquired distinctiveness is often measured through consumer survey research. Keegan & Donato Consulting has extensive experience conducting acquired distinctiveness surveys. Please contact us to find out more about how consumer data can assist in proving that your client’s mark has achieved acquired distinctiveness.