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

Certain L-e Products, Majority Op. at 8, citing McCarthy, §15:2. Proofof secondary meaning is a question of fact which must be established by apreponderance of the evidence. L citing McCarthy, 515:ll.be in the form of direct or circumstantial evidence.Such proof canIn this context,direct evidence is that which proves the relevant state of mind ofconsumers through testimony, and "quasi direct evidence" of such state ofmind that is garnered by means of a professionally conducted consumersurvey.Circumstantial evidence in this context is that which invites aninference of the consumers' state of mind as a result of advertising thealleged mark, length of use, exclusivity of use, and sales volume. u. at. .9; ;, Inv. No. 337-TA-133, Commission Op.at 13-14, USITC Pub. 1512 (19841, aff'd, -n.** Levi Strauss co* v- Blue Bell- -bc. v. U.S.1,T.C. ;sse, 216 U.S.P.Q. 606, 612 (N.D.Cal. 1982) ; Deere & C- , 217 U.S.P.Q. 252, 263 (S.D. Iowa1982). Generally, the less distinctive the alleged mark, the greater theevidentiary burden to establish secondary meaning. m, m,Commission Op. at 9; McCarthy, section 15:lO at 683.1. Svfvev EvidenceComplainants commissioned .Dr. Robert Sorensen, an expert in consumersurveys and the President of Sorensen Marketing/Management Corporation, toconduct a consumer survey for purposes of determining whether or not theappearance, ' shape, and characteristics of the Hakita power tools oraccessories in issue had acquired secondary meaning. (PP 254). Dr.Sorensen surveyed consumer perceptions of fourteen different tools oraccessories -- a job that Sorensen candidly admitted to be an extremely213