Secondary Meaning Requirement for Non-Distinctive Trademarks
Achieving secondary meaning in your trademark is extremely rare and difficult. Trademarks that are not distinctive are not afforded federal trademark protection from the start because the primary meaning that is conveyed to the public may not be able to satisfy the purpose of a trademark. Among these are: descriptive terms, personal names, geographically descriptive terms, laudatory terms, slogans, trade dress, or even colors. This group does not normally distinguish the source of goods or services from one source to another from the start. However, over time this group of terms may take on a new secondary meaning which will be regarded by the public as designating the source of the goods or services.
Requirements for Establishing Secondary Meaning
In order to achieve a secondary meaning, it must be proven that the trademark indicates to the public that a good or service originates from a single source. This would distinguish the goods or services associated with the trademark from the the goods or services of another. The burden of proving secondary meaning rests in the individual who is asserting that a secondary meaning exists. This is a heavy and difficult burden to prove. There are no specific guidelines to prove secondary meaning and no single fact is considered enough to determine secondary meaning. Each case is decided on whatever facts relate to the impact the trademark has had on public consciousness.
Some factors that might help prove secondary meaning could include: direct consumer testimony of the meaning, consumer surveys, advertising of the trademark, length and the manner of use of the trademark, and exclusivity of use.