Acquired Distinctiveness: Building Trademark Rights Through Use

Acquiring secondary meaning is a process by which a trademark that is not inherently distinctive becomes distinctive by developing a strong association in the minds of consumers between the mark and the source of the goods or services. Secondary meaning is also known as acquired distinctiveness or acquired significance.

Some paths to acquiring secondary meaning are:

• Long and continuous use of the mark in commerce, especially if it is exclusive or substantially exclusive, which can create a presumption of secondary meaning after five years of use under the Lanham Act.
• Extensive and consistent advertising, promotion, and publicity of the mark, which can create consumer recognition and awareness of the mark as a source identifier.
• Consumer surveys, testimonials, or other evidence of consumer perception and recognition of the mark, which can demonstrate the actual impact of the mark on the relevant market.
• Unsolicited media coverage, awards, or recognition of the mark, which can enhance the reputation and goodwill of the mark and its source.
• Registration of the mark on the Principal Register of the U.S. Patent and Trademark Office, which can provide prima facie evidence of secondary meaning for marks that are descriptive, suggestive, or have acquired distinctiveness under Section 2(f) of the Lanham Act.

If your mark is not inherently distinctive, proving secondary meaning is essential for enforceability and federal registration.

Early and consistent brand development—paired with smart documentation of advertising spend, media attention, and customer recognition—lays the groundwork for protection.

Work with legal counsel to craft an evidence strategy that supports your trademark’s evolution from descriptive to distinctive.