Surveying 'Genericness' in Trademark Litigation
The Trademark Report, Vol. 78, No. 1, 1988
12 Pages Posted: 29 Nov 2010
Date Written: November 28, 2010
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
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