On Kevin’s initial question, I agree with Deborah that it’s both a super interesting question and that the various genericism tests probably work okay for both the born-generic and genericide situations. I’ll admit to now being wobbly on this, though. I do think you’re on to something, Kevin, in noting that in situations when we ask if a formerly distinctive mark has gone generic, the mark likely has significant secondary meaning at least for some proportion of consumers. By comparison, when we ask if a mark has been born generic, the best a court might find is that the mark is instead descriptive, and then the court would have to proceed to the question of whether the mark has secondary meaning. In this latter situation, perhaps courts improperly conflate in one inquiry what are two questions: (1) the question of generic versus descriptive, and (2) the question of descriptive with secondary meaning or descriptive without secondary meaning. I’m not sure how this plays out, but it’s worth thinking through.
Kevin, I’m nominating you to the trademark nerds club. Welcome.