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Secondary Meaning

Many corporate lawyers make the claim that their client's mark has achieved secondary meaning when in fact it has not. Another typical lie by corporate lawyers to enhance their position. Secondary meaning is not acquired by lenghty use but rather by the perception in the minds of the public.

In American Footwear Corp. v. General Footwear Co. Ltd., 609 F.2d 655, C.A.N.Y., 1979, the Second Circuit Court of Appeals stated:

The doctrine of secondary meaning requires not only that the mark have a subordinate meaning, but also that the Primary significance of the mark in the minds of the consumers is the identification of the producer, not a designation of the product. See Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938); Spang v. Watson, 92 U.S.App.D.C. 266, 205 F.2d 703 (D.C. Cir.), Cert. denied, 346 U.S. 938, 74 S.Ct. 378, 98 L.Ed. 426 (1954); Blisscraft of Hollywood v. United Plastic Co., 189 F.Supp. 333 (S.D.N.Y.1960), Aff'd in part, rev'd in part on other grounds, 294 F.2d 694 (1961). So, when a company causes the public to associate a certain word with that company's business, that word has a secondary meaning and receives the full protection of the law of trademark and unfair competition. The crucial question in a case involving "secondary meaning" always is whether the public is moved in any degree to buy an article because of its source. See Wyatt Earp Enterprises, Inc. v. Sackman, Inc., supra. Proof of secondary meaning is often difficult inasmuch as no precise guidelines are applicable and no single factor is determinative. Each case must, therefore, be decided on its facts with consideration given to such elements as the length and exclusivity of use, sales levels, and extent of advertising and promotion. The fact that Universal has succeeded in popularizing the word "bionic," and cultivated public acceptance of a relatively unknown word, while sufficient to support a finding of distinctiveness, Alfred Dunhill of London, Inc. v. Kasser Distillers Products Corp., 350 F.Supp. 1341, 1359 (E.D.Pa.1972), Aff'd, 480 F.2d 917 (3d Cir. 1973); Time Mechanisms, Inc. v. Qonaar Corp., 422 F.Supp. 905, 912 (D.N.J. 1976), is insufficient to support a finding of secondary meaning.

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