104 Iowa L. Rev. 829 (2019)

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Abstract

Trademarks have been an integral part of our economic system for generations. As our needs and abilities have advanced, so too have trademark regulations advanced to meet these new challenges. This Note examines the requirements for federal trademark protection under the Lanham Act. Protection normally only extends to marks that are determined to be inherently distinct; however, in certain circumstances, marks that are not inherently distinct may be eligible for protection, if it can be sufficiently proven that a descriptive mark acquired distinctiveness. The best tool for showing that descriptive marks have become distinct are consumer surveys, which allow parties to look directly into the minds of consumers. However, there is no established standard for what level of positive response is needed on a consumer survey for the survey to be persuasive. Without an identifiable standard, the federal circuits have been thrown into disarray, each developing its own standard to address this void. This Note proposes that a “soft threshold” should be set by the Supreme Court for these surveys, creating a guidepost to help determine whether the mark has made a sufficient showing of distinctiveness.