Survey evidence is a common way of proving secondary meaning, a crucial step in trademark litigation. Keegan & Donato Consulting can help you develop a robust case strategy.
Keegan & Donato Consulting, a specialty research consultancy, is located in Rye, New York. We work on behalf of plaintiffs and defendants to provide independent and reliable consumer-based survey research solutions and follow a solid methodological foundation in survey design, execution and presentation.
Principals Mark Keegan and Tony Donato offer wide-ranging strategic and analytical skills in the area of intellectual property litigation, and have collaborated extensively with plaintiffs and defendants in support of trademark infringement and trade dress litigation and on cases involving marketing, business and financial issues.
What is Secondary Meaning?
Only an inherently distinctive mark will qualify for trademark protection. A distinctive mark differentiates a company’s goods and services from the goods and services of competitors.
A non-distinctive mark, such as a “descriptive” or “generic” mark, simply describes and names a feature of the goods or services. These marks are only protectable after the mark has proved to have acquired distinctiveness, or “secondary meaning,” with consumers through advertising and brand building.
Secondary meaning arises when the consuming public associates an otherwise descriptive word, name, slogan, symbol or design with a single source. This is a powerful indicator that a mark is no longer merely descriptive and has been elevated in the minds of consumers as a distinctive identifier of a specific brand.
When this happens, a descriptive mark that a business was unable to register initially may be entitled to trademark protection even though it is sometimes used generically by consumers. For example, the words “holiday” and “inn” in the Holiday Inn® brand name are descriptive words that refer to vacations and lodging. After decades of use in the marketplace, however, the mark acquired secondary meaning because consumers associate the Holiday Inn® brand with a single lodging chain. Other examples include Band-Aid® for an adhesive bandage, ChapStick® for lip balm, and Xerox® for copy machines.
How a Survey Can Help
Has your client’s mark acquired secondary meaning among consumers? Survey evidence will provide the answer.
Proving secondary meaning is often a crucial step in trademark litigation. A finding of secondary meaning essentially elevates a mark’s status, opening the path to trademark protections that previously were unavailable. For this reason, allocating sufficient attention to the issue of secondary meaning should be a primary consideration in developing case strategy.
Conducting a consumer research study is a common approach toward proving secondary meaning. Keegan & Donato Consulting will design a study to target relevant consumers in your client’s market and determine how these consumers perceive your client’s brand.
Get in touch with Keegan & Donato Consulting at (914) 967-9421 to find out how a secondary meaning study can help you develop a robust strategy in your trademark case.