De Facto Secondary Meaning Law and Legal Definition

De facto secondary meaning exists when an interest in the public good overrides the protection of a mark. The mark should otherwise serve as source identification for consumers and has acquired secondary meaning. De facto secondary meaning exists when a mark is generic or functional. Such marks can never be granted exclusive rights. It cannot be provided exclusive rights even if the mark owner has done everything possible to preserve rights in the mark through proper usage, policing or a heavy advertising campaign resulting in secondary meaning. There is a strong public interest in allowing competitors to all use words that inform the public about the nature of their goods. However, it is nearly impossible to do so if exclusive rights are granted in the words necessary to describe a product. The doctrine of de facto secondary meaning precludes the granting of monopoly powers available under trademark law.