In a decision Wednesday, the Third Circuit affirmed a district court's grant of summary judgment in a trademark case, finding the asserted mark not protectible as a matter of law.
The district court granted summary judgment that the mark was generic. On appeal, the Third Circuit held there was a genuine issue of fact as to genericness, but that even if it the mark was descriptive, there was no genuine issue as to secondary meaning and upheld the summary judgment. Specifically, the plaintiff had no evidence that it had independently used the mark at issue separate and apart from its house mark, so evidence of sales and marketing of the product could not support an inference of secondary meaning. Further, the plaintiff did not perform a secondary meaning survey. As a result, "under the specific circumstances presented by this case," the evidence presented was insufficient to generate a genuine issue of material fact. Accordingly, the court affirmed the district court's grant of summary judgment.
More concerning E.T. Browne Drug Co. v. Cococare Prods., Inc. after the jump.