Mirage Hotel Las Vegas

FN3. Secondary meaning has been described as "consumer acceptance and recognition of [a descriptive trade name] as denoting only one seller or source." McCarthy, supra, at § 11:9.

An arbitrary tradename has been defined as one in "common linguistic use but which, when used with the goods or services in issue, neither suggest nor describe any ingredient, quality, or characteristic of those goods and services." McCarthy, supra, at § 11:4. The Rosoffs argue MIRAGE Motel is clearly an arbitrary tradename, and therefore no issue of fact exists about whether it is protected. The district court agreed.

On appeal, however, A.L.M.N. argues that MIRAGE Motel could be considered: (1) a descriptive tradename, or (2) a weak suggestive name. It argues that the word MIRAGE alludes to a desert, thus describing or suggesting the business's geographical situs. A.L.M.N. argues that the correct categorization of a tradename--whether a name is descriptive or arbitrary--is a genuine issue of material fact, mandating a trial. A.L.M.N. also notes that if the name is considered descriptive, the Rosoffs must show that it has secondary meaning before it is entitled to protection, which is also a factual determination. Both latter assertions are accurate general statements of the law. [FN4]

FN4. The categorization of a tradename is normally a factual determination. E.g., WSM, Inc. v. Hilton, 724 F.2d 1320, 1326 (8th Cir.1984) (citing 3 Callman, The Law of Unfair Competition, Trademarks and Monopolies 66 (Supp.1982)); McCarthy, supra, at § 11:1 n. 6. However, on occasion, when there can be no genuine dispute about the category of a tradename, courts have determined, on summary judgment, the category of a tradename or mark. E.g., Gimix, Inc. v. JS & A Group, Inc., 699 F.2d 901 (7th Cir.1983); Team Cent. Inc. v. Xerox Corp., 606 F.Supp. 1408 (D.Minn.1985).