Knowing the Nuances of Secondary Meaning

For businesses navigating the daunting world of intellectual property law, the concept of secondary meaning can often feel confusing yet important. Put simply, secondary meaning occurs when the general public, by reference to a phrase or symbol, will associate it to a specific product, service, or business. In other words, secondary meaning allows businesses to create distinctiveness among the existing domain of products, services, and businesses. It can be a helpful mechanism for businesses to secure legal protection over a symbol or phrase which is not eligible for protection under copyrights, trademarks, or patents.

When considering a potential phrase or symbol for trademark protection, businesses must be able to provide convincing proof that the general public is already familiar with them, and recognizing them as a symbol or phrase which specifically and uniquely represents the business. To clarify, they must be able to prove that the general public has formed an association between the business and the symbol or phrase, and that this association is so distinctly recognizable in the minds of consumers that it can indicate the ‘source’ of the product or service.

What Qualifies as Secondary Meaning?

An iconic example of secondary meaning is McDonald’s golden arches logo. McDonalds’ vast success and their iconic logo have created a unique relationship between the general public and the brand. Most people are readily familiar with McDonald’s golden arches logo, and it is easily recognizable as a symbol associated with the large restaurant chain. Though simple in design, it carries significant influence and can be credibly associated with McDonalds’ products or services. Therefore, it has achieved a level of secondary meaning, and can serve as protection for the symbol against potential infringement cases.

What if an Application for Secondary Meaning Is Refused?

If an application to protect a symbol or phrase under secondary meaning is refused, businesses may decide pursue recognition under other forms of intellectual property law, such as copyrights, trademarks, or patents. Depending on the entity seeking protection, the success in acquiring recognition or protection will depend on the originality, creativeness, and/or level of distinction found within the symbol or phrase. However, it is important to note that the acquisition of recognition or protection under any form of IP law is not guaranteed.

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Conclusion: Is Secondary Meaning Right for Your Business?

Businesses must proceed with caution when considering the pursuit of protection under secondary meaning. It is important for business to determine if the investment will yield tangible returns. If the symbol or phrase for which protection is sought meets the requirements of secondary meaning, then it is worth further investigation. However, businesses should consider conducting a risk and rewards analysis to ensure that pursuing protection of the symbol or phrase is the most beneficial path forward.

Related Legal Concepts

Secondary meaning intersects with several fundamental intellectual property concepts that businesses should understand. While secondary meaning helps establish trademark protection for otherwise generic terms, it differs from a secondary boycott, which involves labor law restrictions on certain types of organized consumer actions. The development of secondary meaning requires substantial evidence of consumer recognition and association with a particular source, making it a critical consideration in trademark law and broader intellectual property strategy.

The Bottom Line

Secondary meaning provides a valuable pathway for businesses to protect symbols or phrases that might not otherwise qualify for trademark protection, but establishing it requires substantial proof of consumer recognition and association. Success depends on demonstrating that the public distinctly connects the mark with a specific source of goods or services. For guidance specific to your situation, always consult a qualified, licensed attorney.