A Teflon Survey "Spectacle"

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A Teflon Survey "Spectacle" Op. 1, No. 40

Teflon surveys can be fraught with landmines and potential tripwires. The USPTO recently encountered such obstacles in a case involving the applied-for mark, "Spectacles." See Snap Inc. v. Vidal, No. 2:22-cv-00085-SK, 2024 U.S. Dist. LEXIS 187516 (C.D. Cal. Sep. 27, 2024). If you are developing Teflon survey evidence, you might want to stick around and take a look at the rest of this post.

Snap Inc. ("Snap") is the purveyor of Snapchat--the wildly-popular social media app used by countless teens across the globe.

Snap also offers "Spectacles," which are augmented reality "smart glasses" paired with the app to enhance various functionalities (apologies if I'm giving any parents of teens more to fret about here). Snap sought registration for both the word and stylized versions of the mark. Things started off a bit hazy for Snap.

The examiner refused registration. Same with the TTAB. It ultimately found that "Spectacles" was either generic for "smart glasses," or was merely descriptive and lacked secondary meaning. Per 15 U.S.C. § 1071(b), Snap filed a civil suit against the USPTO (technically against the Director of the Office) in the U.S. District Court for the Central District of California.

In this de novo proceeding, the USPTO submitted two "Teflon" genericism studies to bolster its position that Spectacles was, indeed, generic.

The Hon. Magistrate Judge Steve Kim carefully reviewed this proffer, and rejected both surveys.

At the risk of having your eyes glaze over, we will only discuss a couple of the more salient issues associated with the second survey.

Recall that with a Teflon survey, the goal is to gauge the "primary significance" of the mark under observation. The Teflon format is as follows: (1) survey respondents are provided a "mini-course" explaining the difference between a "brand name" and a "common name;" (2) respondents are given a "mini-test" to ensure that they grasp the difference; and (3) those that pass advance to the next round where they are asked to classify various words as either "brand names" or "common names" (such as the alleged trademark under observation in this case, "Spectacles.")

Here, the USPTO's survey expert claimed that the results showed that approximately 73% of consumers believed Spectacles was "generic" for smart glasses. This claim did not pass scrutiny in the eyes of the Court for multiple reasons. We discuss two of them here.

First, the Court was troubled by the ultimate conclusion drawn from the study that consumers must have viewed Spectacles as either a generic name or a brand name. In the Court's view, it is not necessarily a binary choice. What the survey did not do is test for whether consumers viewed Spectacles as "descriptive," which would potentially open the door to registration upon a showing of secondary meaning. Snap Inc., at *39 (noting that the "survey design cannot differentiate those who, while they may not have recognized the mark as a brand designation, still may have thought the mark was only descriptive of smart glasses rather than a generic name for the product").

Second, the Court also had concerns about the design of the mini-course, the mini-test, and the main survey itself. The cumulative effect of this trifecta "primed" the respondents in favor of classifying Spectacles as generic. Why was that?

The Court found the examples used to "educate" and then "test" survey respondents were simply too extreme on both ends. For example, during the mini-course, respondents were provided with a "stark contrast" between brand names and common names:

The Court looked similarly askance at the mini-test for the same reason:

In the Court's judgment, by the time respondents got to the "main event" it was simply a fait accompli as to how they would react:

"By the time respondents have gone through these minicourses and mini tests, it takes little survey expertise to reasonably predict how the respondents would classify the target term 'spectacles' in the main tests given the chasm between inherently distinctive brand names (in the left column) and inherently nondistinctive generic words (in the right column)."

Id. at * 41.

For these and other reasons, the Court found the surveys did not carry the day for the USPTO.

The Takeaway. All survey research calls for clear-eyed discernment as to the structure, word choice, and myriad other design features. Teflon studies can pose multiple issues and stumbling blocks along the way, particularly with how the mini-course and the mini-test are conducted. The Court's order is linked below. The discussion of the surveys starts on p. 29.