The Plaintiff, a broker of insurance products marketed to a specialized professional audience, alleged that the Defendant’s competing brand infringed upon Plaintiff’s trademark rights and diverted consumers and revenue away from the Plaintiff’s business. The Defendant disputed the validity of the Plaintiff’s registrations and, among other defenses, sought to determine the extent to which the Plaintiff’s mark had acquired secondary meaning—i.e., whether relevant consumers had come to associate the term with a single source—within the relevant market.
Keegan & Donato was retained by the Defendant to design and execute a secondary meaning study using a test vs. control format, a recognized methodology for isolating the net level of source association attributable to a mark above and beyond the baseline level of association present in the marketplace generally. The study was conducted among hundreds of professionals in the market for the insurance products and services at issue. Test group respondents were shown the unstylized mark at issue and asked whether they believed it was used by one provider, more than one provider, or no provider; control group respondents were asked the identical question regarding a fabricated, descriptive term that shared relevant characteristics with the mark at issue but contained no contested trademark elements.
The study findings did not support a finding of secondary meaning. The proportion of test group respondents who associated the mark at issue with a single provider did not exceed the proportion of control group respondents who attributed single-source meaning to the fabricated control term, yielding a net secondary meaning measurement of zero percent. Open-ended responses reinforced this finding, with only a small fraction of respondents being able to identify the Plaintiff by name when asked which provider they associated with the term. This finding provided evidence that the contested term functions descriptively within the relevant market rather than as a source identifier for any single company.
Because the study employed a rigorous test vs. control design to isolate and net out baseline, extraneous association with the relevant product category, the results provided reliable evidence that the contested mark has not acquired secondary meaning among relevant consumers.