De facto secondary meaning exists where an interest in the public good overrides the protection of a mark that otherwise serves to identify source for consumers and has acquired secondary meaning. De facto secondary meaning exists when a mark is generic or functional. These types of marks can never be granted exclusive rights, even if the mark owner has done everything possible to preserve rights in the mark through proper usage, policing or a heavy advertising campaign resulting in secondary meaning. There is a strong public interest in allowing competitors to all use words that inform the public about the nature of their goods, but doing so is nearly impossible if exclusive rights are granted in the words necessary to describe a product. For this reason, the doctrine of de facto secondary meaning precludes the granting of monopoly powers available under trademark law.
