1212.06(c) Affidavits or Declarations Asserting Recognition of Mark as Source Indicator
Affidavits or declarations that assert recognition of the mark as a source indicator are relevant in establishing acquired distinctiveness. However, the value of the affidavits or declarations depends on the statements made and the identity of the affiant or declarant. See In re Chem. Dynamics Inc., 839 F.2d 1569, 1571, 5 USPQ2d 1828, 1830 (Fed. Cir. 1988) (finding conclusionary declaration from applicant’s vice-president insufficient without the factual basis for the declarant’s belief that the design had become distinctive); In re Palacio Del Rio, Inc., 2023 USPQ2d 630, at *11-13 (TTAB 2023) (finding declaration from applicant’s vice-president of sales and revenue insufficient where conclusory statements about uniqueness of applicant’s trade dress were not supported by evidence, statements about 55-years use in U.S. commerce only appeared in San Antonio, advertising figures viewed in context of length of use were not significant, and sales figures lacking industry context were not probative).
Proof of distinctiveness also requires more than proof of the existence of a relatively small number of people who associate a mark with the applicant. See In re Palacio Del Rio, Inc., 2023 USPQ2d 630, at *7 ("the [four] customer declarations . . . [were] too few in number and [were] in many ways identical or ‘cookie cutter,’ diminishing their persuasiveness in these appeals;" and "have minimal probative value to the extent they purport to espouse legal conclusions on the ultimate issue of distinctiveness"); In re The Paint Prods. Co., 8 USPQ2d 1863, 1866 (TTAB 1988) ("Because these affidavits were sought and collected by applicant from ten customers who have dealt with applicant for many years, the evidence is not altogether persuasive on the issue of how the average customer for paints perceives the words ‘PAINT PRODUCTS CO.’ in conjunction with paints and coatings."); see also Mag Instrument Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1723 (TTAB 2010) (finding sixteen declarations of little persuasive value, as they were nearly identical in wording and only one of the declarants was described as an end consumer); In re Gray Inc., 3 USPQ2d 1558, 1560 (TTAB 1987) (finding affidavit of applicant’s counsel expressing his belief that the mark has acquired secondary meaning of "no probative value whatsoever" because, among other reasons, the statement is subject to bias); In re Petersen Mfg. Co., 2 USPQ2d 2032, 2035 (TTAB 1987) (finding declarations from customers which stated that designs used by applicant indicate to the declarant that the applicant is the source of the goods, but which did not refer to or identify the designs with any specificity, not persuasive); In re Bose Corp., 216 USPQ 1001, 1005 (TTAB 1983), aff’d, 772 F.2d 866, 227 USPQ 1 (Fed. Cir. 1985) (deeming retailer’s statement that he has been in contact with many purchasers of loudspeaker systems of whom a substantial number would recognize the depicted design as originating with applicant competent evidence of secondary meaning); In re Flex-O-Glass, Inc., 194 USPQ 203, 206 (TTAB 1977) ("[T]he fact that the affidavits may be similar in format and expression is of no particular significance . . . since the affiants have sworn to the statements contained therein.").