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 AOL v AT&T, 243 F3d. 812 (4th Cir, 1999) Last, the Court would note that McCarthy recommends using consumer surveys as a means of determining whether the primary significance of a mark is generic. See 2 McCarthy 12:13 at 12-26 to 12-34. However, when determining whether a mark is generic, the Court is not to consider whether the mark has acquired any secondary meaning, because generic marks, with secondary meaning are still not entitled to protection. To allow protection would "deprive competing manufacturers of the product of the right to call an article by its name." See Abercrombie & Fitch, 537 F.2d at 9; see also Genesee Brewing Co., 124 F.3d at 143 n.4; Keebler Co., 624 F.2d at 374 ("No amount of purported proof that a generic term has acquired secondary meaning associating it with a particular producer can transform that term into a registrable trademark"); Reese Publ'g, 620 F.2d at 12 n.2 (evidence of secondary meaning "at most could have established 'de facto secondary meaning,' which cannot suffice to convert a generic term into a trademark"); Surgicenters, 601 F.2d at 1016 (a generic word "cannot be validly registered as a trademark even if there is proof of secondary meaning"). If a term is generic, then regardless of whether one particular company or individual has succeeded in having the public think of that company/individual when they think of the term, the term nonetheless describes a genus, when the purpose of trademarks is to describe the species.