Federal Circuit casts doubt on "association" question in survey

Royal Crown Company, Inc. v. Coca-Cola Co., No. 2016-2375 (Fed. Cir. Jun. 20, 2018)

The Federal Circuit remanded on the issue of whether COKE ZERO and similar marks could be registered without a disclaimer, instructing the TTAB to try again on the standard for genericity (which can include things that are integral to a subset of the relevant goods/services).  But I want to talk about an interesting bit in the court’s discussion of Coca-Cola’s survey, which it found to be not very probative of non-genericity.  The survey was old, but it also asked about the “associat[ion]” between ZERO and one or more companies, not about source or sponsorship. “[T]his question is not sufficient to demonstrate the public’s perception of the term ZERO; association does not imply that a consumer would be confused by seeing a ZERO-branded product under a different label, nor does it address what meaning consumers attach to the term ZERO.” Nice language to cite against the more overreaching surveys, although I recognize that the survey was trying to address secondary meaning rather than resulting confusion.