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

As stated by the Trademark Trial and Appeal Board:474 (T.T.A.B. 1976).It is settled that a product can bear more than onetrademark without diminishing the identifyingfunctions of each portion. The salient question iswhether the designation in question, as used, willbe recognized in and of itself as an indication oforigin for this particular product. That is, doesthis component or designation create a commercialimpression separate and apart from the othermaterial appearing on the label.use. u, 191 U.S.P.Q.Where, as here, the alleged designs and color marks are not inherentlydistinctive and are always used in connection with strong existing marks,the name "Makita", the alleged common law trademarks must be shown to havesecondary meaning that creates a connnercial impression separate and apartfrom the existing marks in order for the asserted design to be protectable.peter- Co.. v. Cmral Pur- 740 F.2d 1541, 1550, 222U.S.P.Q.562, 569 (Fed. Cir. 1984) ("Visegrip" and the configuration ofpliers); -cation of McIlhen~Y C- , 287 F.2d 953 (C.C.P.A. 1960)(word mark and the configuration of a bottle); h re NQ$EXI David bCOIID., 372 F.2d 539 (C.C.P.A. 1967).F.Because complainants have not established inherent distinctiveness, theytherefore bear the burden of proving distinctiveness of their claimed marksby the design's acquisition of secondary meaning.Vecondary meaning is a mental association in the buyers' mind betweenthe alleged mark and a single source of the product bearing the mark."212