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Surveying 'Genericness' in Trademark Litigation

The Trademark Report, Vol. 78, No. 1, 1988

12 Pages Posted: 29 Nov 2010  

Larry Teply

Creighton University - School of Law

Ralph Folsom

University of San Diego School of Law

Date Written: November 28, 2010

Abstract

This article discusses the primary significance test that is used when determining whether a claimed trademark word should receive trademark protection or should be considered a generic term. The usual way to determine the primary significance of a word is to use consumer surveys, allowing the public to say how it perceives the disputed word. The authors in this article focus on how many surveys allow the consumers to choose only between whether a word is primarily generic or primarily a brand name. The authors criticize this approach, arguing that the consumers should be able to determine that the word is both a generic term and a brand name, or what is called a hybrid word. Therefore, the authors present a new model consumer survey that incorporates this hybrid result. The article goes into detail of how the survey should work and how the results should be analyzed, including what type of remedies and protections a hybrid word should receive.

Keywords: Trademark, generic term, brand name, primary significance, surveys, consumers

Suggested Citation

Teply, Larry and Folsom, Ralph, Surveying 'Genericness' in Trademark Litigation (November 28, 2010). The Trademark Report, Vol. 78, No. 1, 1988. Available at SSRN: https://ssrn.com/abstract=1716531

Larry Teply (Contact Author)

Creighton University - School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

Ralph Folsom

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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