Yale College and Harvard Law.
Oh, well.  Nobody’s perfect.

Blawgletter delights to read almost anything by U.S. Circuit Judge Richard A. Posner, polymath.  So the arrival today of an opinion bearing Judge Posner’s signature prompted a feeling of pleasant anticipation.  Blawgletter expected to learn something from the pithy master.  His Honor did not disappoint.

The case concerns a "descriptive" trademark, which "picks out a product characteristic that figures prominently in the consumer’s decision whether to buy the product or service in question."  As Judge Posner explains, the law doesn’t protect a descriptive trademark unless it has acquired a "secondary meaning" among consumers:

In time, a term that originally was descriptive may come to signify to consumers a single brand.  A new product may require a descriptive name to introduce consumers to it, but if the product catches on, the name may come to be uniquely associated with the original seller, and another term may come into use to describe the product.  For example, "All Bran" came to mean not any all bran cereal but a particular brand of all-bran cereal.  Once this happens, the term can be appropriated as a trademark because it has come to denote a single brand, not the entire product, so that its use by other sellers of the product would confuse consumers about the source of what they were buying.  In trademark parlance the descriptive mark will have acquired "secondary meaning" and now can be enforced against sellers that use the term or a confusingly similar variant.

Custom Vehicles, Inc. v. Forest River, Inc., No. 06-2009 (7th Cir. Feb. 7, 2007).  Other kinds of marks — "fanciful" ones, "arbitrary" ones, even "suggestive" ones — receive protection without acquiring secondary meaning.  But, because the plaintiff didn’t offer proof of secondary meaning for its descriptive trademark, the court affirmed summary judgment to the defendant.

Oh, yes.  Judge Posner also blogs.

Barry Barnett

P.S.  Check out award-winning Barnett’s Notes on Commercial Litigation (Feb. 2007).

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