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How is "acquired distinctiveness" in trademark law evaluated?

Written by Jan Buza

Co-founder of Trama

Acquired distinctiveness is evaluated based on the evidence the applicant submits demonstrating that the mark has developed a secondary meaning among consumers. The most commonly assessed factors are:

Length and exclusivity of use: how long the mark has been in continuous and exclusive use in connection with the goods or services.
Volume of sales and advertising: the extent of commercial activity under the mark.
Consumer recognition: direct evidence, such as consumer surveys, showing that consumers associate the mark with a specific source.
Media coverage: press references that identify the mark as a brand rather than a generic term.
Third-party recognition: industry publications and awards referencing the mark as a brand.
Intentional copying: evidence that competitors have deliberately copied the mark, which implies recognition of its source-identifying function.

A continuous and exclusive use period of at least five years supports a claim of acquired distinctiveness, though this alone is rarely sufficient. Supporting evidence strengthens the claim significantly.

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