A Reply to Swann and Palladino's Critique of Folsom and Teply's Model Survey

The Trademark Reporter, Vol 197, 1988

31 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 is a reply to a critique of the authors’ model survey relating to generic names and brand names in trademark litigation. The article lists several critiques by two leading members of the trademark bar and responds to each of those critiques. The article starts by discussing the primary significance test, which in general, describes how to determine whether the primary significance of a word is a generic term or a trademark. It then moves on to explain how the primary significance test should be applied when consumers understand a word to be both a generic term and a trademark. The final areas that the article covers are the role of potential consumer confusion in the primary significance test, how the survey should be conducted, and what should be included in the survey.

Keywords: Intellectual Property, trademarks, litigation, primary significance test, generic term, brand name, consumers

Suggested Citation

Teply, Larry and Folsom, Ralph, A Reply to Swann and Palladino's Critique of Folsom and Teply's Model Survey (November, 28 2010). The Trademark Reporter, Vol 197, 1988. Available at SSRN: https://ssrn.com/abstract=1716532

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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