What Is Secondary Meaning?

DEREK FAHEY, ESQ.

Secondary meaning allows a descriptive trademark to become protectable when consumers come to associate the term primarily with one source rather than with the product or service itself.

The Spectrum of Distinctiveness

Trademark strength generally runs from fanciful and arbitrary marks, through suggestive marks, to descriptive and generic terms. Fanciful, arbitrary, and suggestive marks are typically protectable without proof of acquired distinctiveness. Descriptive marks usually require evidence of secondary meaning, while generic terms cannot function as trademarks.

How Secondary Meaning Is Evaluated

Courts commonly consider the length and manner of use, the nature and extent of advertising, efforts to create a connection between the mark and the business, and evidence that consumers actually identify the mark with a particular source.

Consumer surveys and other quantifiable evidence can be especially valuable. Longstanding use, substantial promotion, sales success, and unsolicited media attention may also support a claim that a descriptive mark has acquired distinctiveness.

Practical Brand Strategy

Businesses should evaluate trademark strength before investing heavily in a new brand. Where a descriptive mark is commercially necessary, a deliberate strategy for consistent use, promotion, documentation, and consumer recognition can improve the likelihood that protectable secondary meaning develops over time.