1212.06(d) Survey Evidence, Market Research and Consumer Reaction Studies
Survey evidence, market research, and consumer reaction studies are relevant in establishing acquired distinctiveness and secondary meaning. See Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 43, 59 USPQ2d 1720, 1730 (1st Cir. 2001) ("Although survey evidence is not required, ‘it is a valuable method of showing secondary meaning.’" (quoting I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 42, 49 USPQ2d 1225, 1235 (1st Cir. 1998))).
To show secondary meaning, the survey must show that the public views the proposed mark as an indication of the source of the product or service. See Nextel Commc’ns, Inc. v. Motorola, Inc., 91 USPQ2d 1393, 1402-03 (TTAB 2009) (finding survey did not provide evidence of acquired distinctiveness as it was unclear if respondents associated the sound mark with applicant’s goods or opposer’s services); Boston Beer Co. L.P. v. Slesar Bros. Brewing Co., 9 F.3d 175, 183, 28 USPQ2d 1778, 1784 (1st Cir. 1993) (finding survey insufficient to establish acquired distinctiveness where survey demonstrated product-place association rather than product-source association). The applicant must document the procedural and statistical accuracy of this type of evidence and carefully frame the questions contained therein. See In re Steelbuilding.com, 415 F.3d 1293, 1300, 75 USPQ2d 1420, 1424 (Fed. Cir. 2005) (deeming applicant’s Internet poll on name recognition unreliable, where the poll did not attempt to prevent visitors from voting more than once or to prevent interested parties such as friends or associates or employees of the applicant from voting multiple times, and the poll results did not indicate the number of actual participants); In re E.I. Kane, Inc., 221 USPQ 1203, 1206 (TTAB 1984) ("[T]he survey asked the wrong question. The issue is not whether the term ‘Office Movers’ identifies a specific company. Rather, it is whether the term ‘OFFICE MOVERS, INC.’ identifies services which emanate from a single source."); Gen. Foods Corp. v. Ralston Purina Co., 220 USPQ 990, 994 n.7 (TTAB 1984) ("[W]here ... [reports of market research and consumer reaction studies] have been conducted for marketing reasons rather than directly to assist in resolving the issues in proceedings before us, their value will almost always depend upon interpretations of their significance by witnesses or other evidence."); Specialty Brands, Inc. v. Spiceseas, Inc., 220 USPQ 73, 74 n.4 (TTAB 1983) (finding testimony concerning survey results, unsupported by documentation, to be unreliable hearsay)