What is the acquired distinctiveness?
Trademarks are signs that are used to distinguish the goods or services of one business from those of another. In order to be registered as a trademark, a mark must be distinctive. A distinctive mark is one that is capable of identifying the source of goods or services and distinguishing them from those of other businesses.
However, some marks may not initially be distinctive because they are descriptive or generic in nature. A descriptive mark is one that describes the goods or services to which it applies, while a generic mark is one that is commonly used to refer to a particular class of goods or services.
Acquired distinctiveness, also known as secondary meaning or acquired secondary meaning, is a concept in trademark law that refers to the ability of a trademark to acquire distinctiveness over time through use in commerce. This means that over time, the trademark has become associated with a particular product or service in the minds of consumers, such that it has developed a secondary meaning beyond its original descriptive or generic meaning.
Examples of trademarks that have acquired distinctiveness
There are many famous trademarks that have acquired distinctiveness over time through extensive use in commerce. Here are some examples:
Coca-Cola: The name Coca-Cola was initially descriptive of the product, which contained extracts of coca leaves and kola nuts. However, over time, the name has acquired a secondary meaning as a brand name for the popular soft drink.
Kleenex: The term "Kleenex" was initially a generic term for facial tissues. However, the Kleenex brand has become so well known that the term is often used as a synonym for facial tissues.
Xerox: The name "Xerox" was initially descriptive of the company's photocopier machines, which used a dry process to produce copies. However, the Xerox name has acquired a secondary meaning as a brand name for photocopiers and related products.
Band-Aid: The term "Band-Aid" was initially a generic term for adhesive bandages. However, the Band-Aid brand has become so well known that the term is often used as a synonym for adhesive bandages.
How to prove acquired distinctiveness?
Trademark owners can prove acquired distinctiveness by providing evidence that the trademark has acquired a secondary meaning in the minds of consumers. The following are some ways in which trademark owners can establish acquired distinctiveness:
Consumer surveys: Consumer surveys can be conducted to show that the trademark has acquired a secondary meaning in the minds of consumers. The surveys should demonstrate that a significant percentage of consumers associate the trademark with a particular source of goods or services.
Sales figures: Sales figures can be used to show that the trademark has been used in commerce for a sufficient period of time and has acquired a secondary meaning as a result.
Advertising and promotional materials: Advertising and promotional materials can be used to demonstrate that the trademark has been used extensively in commerce and has acquired a secondary meaning as a result.
Other documentation: Other documentation, such as media coverage or industry awards, can be used to show that the trademark has acquired a secondary meaning in the minds of consumers.
It is important to note that the evidence required to establish acquired distinctiveness may vary depending on the jurisdiction and the specific facts of the case. Therefore, it is advisable to seek consultation with an experienced trademark attorney who can provide guidance on the evidence required to establish acquired distinctiveness in a particular case.
