Secondary Meaning and Acquired Distinctiveness Surveys

Dr. Neal, with the support of the Catalyst research team, has designed and conducted hundreds of consumer perception surveys for use in litigation across intellectual property, false advertising, and complex commercial disputes.

He has been retained by both plaintiffs and defendants in federal and state court proceedings, before the Trademark Trial and Appeal Board (TTAB), the National Advertising Division (NAD), and the International Trade Commission (ITC). Catalyst’s work spans multiple issues and methodologies.

Intellectual Property Cases

Likelihood of
Confusion

Likelihood of confusion surveys measure whether consumers are likely to be confused as to the source, sponsorship, or affiliation of products or services bearing allegedly similar marks. Dr. Neal has conducted and testified concerning the following kinds of likelihood of confusion surveys.

Eveready format Squirt format Aided-Eveready format Reverse and forward confusion Point-of-sale confusion Post-sale confusion Initial interest confusion

Secondary
Meaning/Distinctiveness

Secondary meaning surveys measure whether consumers associate a word, phrase, or trade dress configuration with a single source — a key evidentiary requirement to differentiate marks that are alleged to be merely descriptive versus distinctive.

Words and word marks Logos and designs Trade dress

Genericness

Genericness surveys measure whether a term or trade dress is primarily understood by the relevant public as identifying a category of goods or services or as a brand. Dr. Neal has conducted and testified concerning the following kinds of genericness surveys.

Teflon format Thermos format

False Advertising Cases

False advertising surveys — also called consumer perception surveys — measure the messages consumers take away from advertising, product packaging, and other marketplace communications. They are a primary evidentiary tool in Lanham Act Section 43(a) false advertising disputes and in proceedings before the National Advertising Division (NAD).

Net impression and deception Puffery Materiality and influence on purchasing decisions

Fame, Recognition
and Dilution

Fame/recognition surveys assess the degree of public recognition of an allegedly famous mark. Dilution surveys measure whether consumers make an association with the senior user due to a junior user's alleged infringement — a central inquiry in dilution-by-blurring claims.

Fame and recognition Association and dilution by blurring

Class Certification and Consumer Impact

In class action proceedings, consumer surveys can help by providing objective, population-level evidence of common consumer understanding or reliance — supporting or rebutting predominance arguments under Rule 23(b)(3).

Predominance/homogeneity of an asserted class Consumer impact and reliance

Patent-Related
Surveys

Consumer surveys in patent litigation can address a range of critical questions, including the value of a claimed invention, whether/how often an allegedly infringing feature or method is used, and whether relevant consumers were induced to infringe. A variety of "direct" survey methods (e.g., test-control experiments) and "indirect" survey methods (e.g., choice-based conjoint) are commonly used in these cases.

Apportionment of feature value — direct survey methods and conjoint analysis Infringing use Inducement

Survey Rebuttal and Methodological Critique

Dr. Neal has served as a rebuttal expert across trademark, false advertising, patent, and class action matters — analyzing opposing surveys and identifying methodological flaws that bear on reliability and validity, including universe errors, stimulus bias, missing or poorly matched controls, randomization failures, weak quality controls, and leading question design.

Universe and stimulus critique Control cell and randomization Question design and data integrity

Secondary Meaning and Acquired Distinctiveness Surveys

Article

A descriptive term or design that is not inherently entitled to trademark protection can acquire protection if it has developed secondary meaning, or "acquired distinctiveness" — that is, if the relevant consuming public has come to understand the term or design as identifying a particular source of goods or services. Consumer surveys that directly measure this consumer understanding are among the most probative forms of evidence on the question of secondary meaning, and courts and the Trademark Trial and Appeal Board (TTAB) have consistently recognized them as such.

Dr. David Neal has conducted numerous secondary meaning surveys across a range of mark types and product categories, including word marks, design marks, and trade dress.

What Secondary Meaning Surveys Measure

Secondary meaning is established when, in the minds of a sufficient percentage of the consuming public, a mark serves to identify the source of the product. A secondary meaning survey is designed to empirically measure how widely that perception is held.

The relevant universe for a secondary meaning survey is typically purchasers or prospective purchasers of the product or service for which the mark is used. Survey results are reported as the net percentage of the relevant consumer population that associates the mark with a single source of origin, providing courts and the TTAB with quantitative, population-level evidence on the distinctiveness of the mark.

As with many other formats, secondary meaning surveys include random assignment to a test cell (where the allegedly distinctive mark is present) and an otherwise similar control cell (where the allegedly distinctive mark is removed). This approach enables calculation of a "net secondary meaning" figure, reflecting associations with a single source in the presence versus absence of the mark at issue.

Secondary Meaning and Trade Dress

Secondary meaning surveys are also regularly employed in connection with trade dress — the visual appearance of a product, its packaging, or its overall commercial presentation. Survey methodology for trade dress follows the same foundational principles as for word marks, with particular attention to isolating the specific trade dress element at issue from other features of the product or packaging that may independently influence consumer source perception.

Note

This summary captures general themes and principles that apply in many circumstances. All surveys in litigation are, however, unique to the facts, allegations and marketplace conditions at issue, and are customized accordingly.

Work With Dr. Neal

Portrait of David Neal

Work With Dr. Neal

To discuss a matter or explore whether a secondary meaning survey is appropriate for your case, contact Catalyst Behavioral Sciences for a confidential consultation.