Tabberone is pronounced tab ber won not tay ber own

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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25 (1st Cir. 2001)

This Court has said that "[p]roof of secondary meaning entails vigorous evidentiary requirements." Boston Beer, 9 F.3d at 181 (quoting Perini Corp. v. Perini Constr., 915 F.2d 121, 125 (4th Cir. 1990)). The only direct evidence probative of secondary meaning is consumer surveys and testimony by individual consumers. Id. Although survey evidence is not required, "it is a valuable method of showing secondary meaning." Lund, 163 F.3d at 42. Yankee has introduced no survey evidence here. Yankee also cites no evidence that individual consumers associate the particular features at issue with Yankee. Secondary meaning may also be proven through circumstantial evidence, specifically the length and manner of the use of the trade dress, the nature and extent of advertising and promotion of the trade dress, and the efforts made to promote a conscious connection by the public between the trade dress and the product's source. See Boston Beer, 9 F.3d at 182. Other factors may include the product's "established place in the market" and proof of intentional copying. Lund, 163 F.3d at 42. Yankee has introduced substantial evidence that the Housewarmer line of candles and corresponding display have been in circulation since 1995, that Yankee spends significant resources advertising its Housewarmer line, and that sales of Housewarmer candles have been extremely successful. See Yankee I, 99 F. Supp. 2d at 153-54. However, in concluding that Yankee had not made a sufficient evidentiary showing of secondary meaning, the district court focused on the lack of evidence as to advertising of the specific trade dress claimed, as well as the lack of evidence demonstrating a conscious connection by the public between the claimed trade dress and the product's source. We believe the district court emphasized the relevant issues in conducting its analysis of secondary meaning. Proof of secondary meaning requires at least some evidence that consumers associate the trade dress with the source. Although evidence of the pervasiveness of the trade dress may support the conclusion that a mark has acquired secondary meaning, it cannot stand alone. To find otherwise would provide trade dress protection for any successful product, or for the packaging of any successful product. See Seabrook, 568 F.2d at 1344 (evidence of sales volume may be relevant to secondary meaning, but "is not necessarily indicative"). Such an open standard hardly comports with the "vigorous" evidentiary showing required by this Court, nor does it comport with the purposes of trade dress protection, namely "to protect that which identifies a product's source." Lund, 163 F.3d at 35. In the absence of any evidence that the claimed trade dress actually does identify a product's source, the trade dress should not be entitled to protection.