Genericness & Survey Evidence

Genericness After Booking.com: Consumer Perception and Survey Evidence for “Generic.com” Marks

A generic term plus “.com” is not automatically generic; no per se rule decides the question. A “generic.com” term is a generic name for a class of goods or services only if the term carries that meaning for consumers, and the inquiry asks whether the term, taken as a whole, signifies a class to the consuming public. Patent and Trademark Office v. Booking.com B.V., 140 S.Ct. 2298 (2020). Because only one entity can occupy a particular Internet domain name at a time, a “generic.com” term can convey an association with a particular website — a source-identifying characteristic.

Consumer perception is a factual question provable from many directions: evidence “can include not only consumer surveys, but also dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a term's meaning.” Justice Sotomayor's concurrence supplies the caution lower courts now routinely invoke — flaws in a specific survey design, or weaknesses inherent in consumer surveys generally, may limit a survey's probative value in sorting descriptive from generic marks.

The same framework reaches compounds of generic elements beyond domain names. A compound of generic terms “is generic if the combination yields no additional meaning to consumers capable of distinguishing the goods or services,” and the critical issue is whether the relevant public primarily uses or understands the term to refer to the genus. Snyder's-Lance, Inc. v. Frito-Lay North America, Inc., 542 F.Supp.3d 371 (W.D.N.C. 2021). On that reasoning PRETZEL CRISPS was generic, with the survey record weighed against the Supreme Court's caveat that surveys “can be helpful evidence of consumer perception but require care in their design and interpretation,” particularly where there are no other sellers of the good.

On survey standards, Snap Inc. v. Vidal, 750 F.Supp.3d 1120 (C.D. Cal. 2024) supplies the leading recent treatment. Teflon and Thermos surveys remain the most recognized and accepted formats in genericness disputes, yet the Teflon method “enjoys no presumption of validity” and no survey is the “be-all and end-all” proof of consumer perception. Snap rejected the PTO's Teflon surveys on SPECTACLES as unreliable because their design could not separate generic from merely descriptive understandings: asking untrained respondents whether a term “relates” or “refers” to a product “smears the critical line between a generic name and a descriptive word,” and control terms pairing fanciful brand names against common vernacular words risked biasing respondents into classifying any ordinary word as generic.

A well-designed survey, by contrast, remains powerful. Teflon data showing that over 80 percent of relevant consumers perceive “pizza puff” as generic counted as strong evidence of genericness under the primary-significance test of 15 U.S.C. § 1064(3) — the same test Booking.com applied. Illinois Tamale Company, Inc. v. LC Trademarks, Inc., No. 25-1072 (7th Cir. 2026). The Seventh Circuit also confirmed that a term need not be a product's exclusive descriptor to be generic, and that even crowd-sourced dictionary definitions bear on how the public perceives a term.

For a “generic.com”-style mark itself, expect a fact-bound dispute. Under Booking.com's consumer-perception test, MULTITRACKS.COM survived summary judgment on genericness; a Teflon-type survey in which a significant percentage of respondents identify the designation as a brand name is evidence both of non-genericness and of secondary meaning. Christian Copyright Licensing International LLC v. Multitracks.com LLC, No. 2:23-cv-00368 (D. Ariz. 2025). Because these fights almost always turn on the generic-versus-descriptive line, the survey-design pitfalls catalogued in Snap will often be decisive.