Certain Electric Power Tools, Battery Cartridges, and ... - USITC

321. One can evaluate the alleged color trademark by examining theresponses "color" and "it's blue".Dr. Sorensen concluded that color had ahigh degree of secondary meaning with respect to Makita.(Sorensen,CXA 10, Sorensen W.S., p. 35; Sorensen, Tr. 3662-63).322. Of the persons that identified Makita as the sole source of thetools that have a blue housing, 24.1% of the 24.01% sole-source Makitaidentifiers answered only "color" or "it's blue" in response to an inquiryas to why they believed Makita was the company that makes the particularproduct. (Judge's Ex. 1). This percentage (5.8%) recognition is clearlynot sufficient, in and of itself, to support a finding of secondary meaningin Makita blue.323. Dr. Sorensen testified that. the overall shape, appearance anddesign of each individual Makita electric power tool carry a significantdegree of secondary meaning, except for the Makita 14" cutoff saw which hadno Makita blue on its exterior housing. (CXA 10; Sorensen W.S., p. 37).324. In Dr. Sorensen's opinion, any and all Makita electric power toolsthat are the subject of the instant proceeding and which bear identical orsimilar shape, appearance, design factors and/or color will generatesecondary meaning results similar to those obtained in this survey.Dr.Sorensen concluded that all of the Makita products specified in theComplaint bear the identical or similar shape, appearance, design factorsand/or color as do the tools that were shown in Survey S. (CXA 10,Sorensen W.S., p. 38).325. The reported results of complainants' survey are inflated due togeographic. distribution, overrepresentation of professional users,