'Continuing Commercial Impression' and its Measurement

Abstract

A trademark's or trade dress' commercial impression is the meaning or idea it conveys to consumers. Courts and administrative tribunals sometimes are confronted with deciding whether a mark or dress generates a continuing commercial impression. In some instances, this arises in regard to questions of abandonment - although a mark or trade dress has not been used for a period of time, the trier of fact must determine whether the public continues to have accurate lingering impressions associated with that mark or dress. In other instances, because corporations periodically make slight modifications to their marks and trade dress in an effort to update and modernize them, triers of fact are called on to determine whether the newer mark or dress generates a continuing commercial impression among the relevant public.

Essentially holding that legal equivalence is a matter of law, in arriving at their determination of continuing commercial impression, triers of fact have relied upon argument and their own inclinations. We argue for a broadening of this perspective. Marks are deemed to be legal equivalents if they create the same continuing commercial impression. As the impression is one that is created in consumers, it seems counterintuitive to conclude that the only relevant evidence is that of an antiseptic analysis of the visual or aural appearance of the marks themselves. Rather, the determination of whether marks are legal equivalents is more properly a mixed question of fact and law - one that, as in other contexts, can be tested by a range of evidence, including consumer survey evidence. We then go on to describe and discuss the only two known occasions where survey evidence has been gathered and proffered in regard to assessing continuing commercial impression, and draw implications from these for future efforts at using consumer survey evidence to support a claim of continuing commercial impression.