How do you prove acquired distinctiveness trademark?
Actual evidence of acquired distinctiveness can take the form of affidavits, declarations (pursuant to 37 C.F.R. §2.20), depositions, or other types of evidence. The objective is to demonstrate the extent, duration, and nature of the use of the mark.
What is a claim of acquired distinctiveness?
“Acquire” means to gain. So, a mark that has acquired distinctiveness has gained something – it has become more distinctive. In most cases, this gain of additional distinctiveness takes time, typically over a period of years.
How do you get acquired distinctiveness?
You may submit actual evidence that the applied-for mark has acquired distinctiveness under Section 2(f) in connection with applicant’s goods. In other words, because of the extensive use and promotion of the mark, consumers now directly associate the mark with the applicant as the source of those goods.
What is distinctiveness trademark law?
What is Trademark Distinctiveness? The ability of a mark to “identify and distinguish” a good or service is known as “distinctiveness.” If a proposed mark is not distinctive, it is ineligible for federal trademark protection and the many benefits associated with registration.
How are trademark rights acquired?
How do you acquire rights in a trademark? Assuming that a trademark qualifies for protection, rights to a trademark can be acquired in one of two ways: (1) by being the first to use the mark in commerce; or (2) by being the first to register the mark with the U.S. Patent and Trademark Office (“PTO”).
How to claim acquired distinctiveness for trademarks?
Another way to claim acquired distinctiveness under Section 2 (f) is to base that claim on a prior registration. If you have one or more prior registrations for the same mark for goods or services that are related, then you can cite to those registrations as evidence that your mark has acquired distinctiveness.
What kind of evidence is needed for acquired distinctiveness?
Three basic types of evidence may be used to establish acquired distinctiveness under §2 (f) for a trademark or service mark:
What does acquired distinctiveness or secondary meaning mean?
A term which is descriptive… may, through usage by one producer with reference to his product, acquire a special significance so that to the consuming public the word has come to mean that the product is produced by that particular manufacturer. 1 Nims, Unfair Competition and Trademarks at §37 (1947). This is what is known as secondary meaning.
How to establish a prima facie case of acquired distinctiveness?
Depending on the nature of the mark and the facts in the record, the examining attorney may determine that a claim of ownership of a prior registration (s) or a claim of five years’ substantially exclusive and continuous use in commerce is insufficient to establish a prima facie case of acquired distinctiveness.