Continuing Commercial Impression: Applications and Measurement

This Article examines applications and measurement of continuing commercial impression, which is the meaning or idea a trademark or trade dress conveys to consumers. The doctrine is relevant in a variety of contexts, including abandonment, tacking, claim preclusion, and the Morehouse defense. A number of courts considering the issue have concluded that continuing commercial impression is a pure question of law. This article argues that such a view is incorrect, and that the doctrine should present a mixed question of law and fact.

In determining whether continuing commercial impression exists, the sole factor should not be the visual or aural appearance of the mark. Instead, commercial impression should be tested by a range of evidence, including consumer survey evidence, if it is available. This Article then examines two rare examples where survey evidence has been gathered and proffered to assess the existence of continuing commercial impression. The Article concludes by drawing implications from these examples for future efforts to use consumer survey evidence to establish or rebut the existence of commercial impression