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Jewish Sephardic Yellow Pages, Ltd. v. DAG Media, Inc.
04-CV-747 (RJD), 2007 WL 817404, E.D.N.Y., 03/19/2007
Holding
Plaintiff failed to show that its trademark "Kosher Yellow Pages" had acquired secondary meaning.
Detailed Summary
Plaintiff published the “Kosher Yellow Pages” and alleged that defendant’s phone book infringed. Defendants sought summary judgment on the grounds that the mark was ineligible for protection. The court, adopting the magistrate judge’s report and recommendation, held that summary judgment should be granted in favor of defendants because the mark had no acquired a secondary meaning and therefore was not entitled to protection. The court reviewed the common factors for determining whether a mark had acquired secondary meaning: plaintiff failed to show how much of its advertising annually goes to promote the Kosher Yellow Pages; by its own admission, plaintiff never conducted a consumer survey; plaintiff provided no actual sales figures; the only evidence of unsolicited media coverage was one article in 1999 that did not even mention the Kosher Yellow Pages by name; and only 4 editions had been published in 4 years, which is not enough to cause the relevant audience to identify the mark with plaintiff. Accordingly, there is no secondary meaning.
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