The latest issue of The Trademark Reporter (pdf here) includes a Commentary by Sarah Butler and Healey Whitsett entitled, “A Tale of Two Cups: Acquired Distinctiveness and Survey Evidence Before the TTAB.” The authors, both directors at NERA Economic Consulting, review the TTAB’s findings in the recent Starbucks cup case (TTABlogged here) involving the trade dress of two Starbucks cups.

In this proceeding, the TTAB carefully evaluated a secondary meaning survey on these criteria and concluded that while the survey had “some probative value,” its reliability was suspect as a result of several issues it addressed. This commentary will focus primarily on the TTAB’s evaluation of the control stimulus used in the secondary meaning survey in this particular case and will also offer some perspective on helpful lessons regarding the foundations of control design. Such lessons include the necessity of the control stimulus sharing as many characteristics with the experimental stimulus as possible, and the selection of changes made to the experimental stimulus.

The authors also  comment on other “methodological learnings” gleaned from the Starbucks decision, including guidance regarding the consideration of open-ended responses provided in the survey and the identification of the correct population of survey respondents.

Read comments and post your comment here.

TTABlogger comment: On a personal note, I recently had the pleasure of working with Sarah Butler on a likelihood-of-confusion survey.

TTABlog Thank You: to The Trademark Reporter for granting permission to the TTABlog to provide a link to this issue. Copyright © 2020 the International Trademark Association. Reprinted with the permission of The Trademark Reporter®, 110 TMR No. 3 (May-June 2020).

Text Copyright John L. Welch 2020.