Commentary: Fashion Dos: Acknowledging Social Media Evidence as Relevant Proof of Secondary Meaning

The tests routinely recited by courts for determining whether secondary meaning exists in an alleged trademark are decades old. Do they properly reflect what it means to establish a new brand—that is, to designate a trademark as a source identifier—in the social media era? Taken literally, most do not. The legal interests the tests reflect, however, should permit such consideration.Indeed, if courts fail to adjust these formulations in recognition of recent innovations in brand development and technology, the law will fail to protect important trademark rights as a matter of course.