hello@yoursite.com
+1 650-253-0000
775 New York Ave, Brooklyn, New York 11203

Strength of Mark

Keegan & Donato Consulting, LLC

Strength of Mark Surveys

How distinctive is the mark?

Strength of mark surveys examine how relevant consumers recognize and understand a trademark. We help attorneys evaluate source associations, recognition, and commercial strength in trademark disputes.

A mark’s strength also affects how much protection it can receive. Inherently distinctive marks generally get more protection than less distinctive marks, or marks that many companies use in the same market.

5
Levels of distinctiveness
Fanciful, arbitrary, suggestive, descriptive, and generic terms

The Spectrum of Distinctiveness

Conceptual strength concerns the mark’s inherent distinctiveness. Commercial strength concerns its recognition in the marketplace. Consumer surveys can provide evidence of recognition and source association; a survey does not replace the legal analysis of distinctiveness.

1

Fanciful

Invented terms that have little or no meaning beyond the mark itself.

Kodak · Exxon

2

Arbitrary

Common words with no logical connection to the goods or services.

Apple · Amazon

3

Suggestive

Marks that hint at the product and ask the consumer to use some imagination.

7-Eleven · Sweetarts

4

Descriptive

Marks that describe attributes of the product. These are unlikely to be protected on their own.

Bufferin · Chap Stick

5

Generic

Everyday words that cannot point to one source.

“soap”

In general, fanciful, arbitrary, and suggestive terms are considered inherently distinctive and receive trademark protection. A descriptive term can still qualify if it has acquired distinctiveness through secondary meaning, which means consumers have come to link the term with one source.

How Surveys Help

Survey evidence can help show whether a contested mark is strong or weak. We tailor the methods to each case.

Strength of a contested mark

When the strength of a mark is in dispute, a consumer survey measures how consumers actually perceive it, instead of relying on assumptions about how distinctive it is.

Descriptive marks

If a mark falls in the descriptive category, the question becomes whether it has acquired secondary meaning. A carefully designed survey can provide direct evidence of source association.

How much will a survey cost?

Every study is built around the needs of the case, so the cost depends on the design.

See Rates & Fees

Areas of Expertise

Likelihood of Confusion

Test-versus-control experimental designs.

Strength of Mark

Survey evidence on how strong a contested mark is.

Secondary Meaning

Whether a mark has acquired meaning for consumers.

Acquired Distinctiveness

How trade dress, such as product design or color, affects consumers.

Lanham Act Claims

Surveys for confusion, secondary meaning, trade dress, and related claims.

Consumer Perception

How consumers view marks, designs, colors, and websites.

Consumer Understanding

How consumers process marketing messages, labeling, and disclaimers.

Rebuttal Work

Critiquing and rebutting opposing experts’ surveys.

Do you have a case that involves strength of mark?

Call us to talk through how a consumer study could show how people perceive your client’s mark.

Contact Us

USPTO guidance on trademark distinctiveness