By: Mickey Tomlinson
This blog post addresses how important consumer surveys will be for “generic.com” owners because of the United States Supreme Court’s recent Booking.com BV v. USPTO decision. The Supreme Court held there is not a per se rule that automatically bars a “generic.com” from being trademarked, rather the consumer perception of the mark determines its eligibility for trademark registration. Booking.com presented evidence consumer surveys illustrating the fact that consumers associate “Booking.com” as a specific company that offers online hotel booking and accommodation services rather than as a class of goods or services. While the Supreme Court found Booking.com’s evidence persuasive, the dissent did not; Justice Breyer argued “generic.com” cannot receive trademark registration because (1) it violates traditional trademark law and (2) consumer surveys are not reliable. Ultimately, the Booking.com BV v. USPTO decision indicates consumer surveys are invaluable and will likely be offered early as evidence in the trademark registration process for similar “generic.com” marks.