
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        Nos. 93-1290             93-1520                      BOSTON BEER COMPANY LIMITED PARTNERSHIP,                             D/B/A THE BOSTON BEER COMPANY,                                Plaintiff, Appellant,                                          v.                         SLESAR, BROS. BREWING COMPANY, INC.,                               D/B/A BOSTON BEER WORKS,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            William O.  Hennessey, with whom  Richard A. Savrann  and Burns  &            _____________________             __________________      ________        Levinson were on brief for appellant.        ________            Martin J.  O'Donnell, with whom Cesari  and McKenna were on  brief            ____________________            ___________________        for appellee.                                 ____________________                                  November 16, 1993                                 ____________________                      BOWNES, Senior Circuit Judge.  Plaintiff-appellant,                      BOWNES, Senior Circuit Judge.                              _____________________            The Boston Beer Company, sought to enjoin defendant-appellee,            Boston Beer Works, from using  the words "Boston Beer" in its            name, and from using the word "Boston" in connection with any            of  its beers.  Appellant contended  that appellee's name was            confusingly similar to  its own, and would mislead the public            into  thinking that Boston  Beer Works' products  or services            originated or were associated  with those of The Boston  Beer            Company.   The district court rejected this claim, concluding            that  appellant's marks "Boston  Beer," as used  in its name,            and  "Boston," as  used in  connection with  a number  of its            products,  were not  entitled to  trademark  protection.   We            affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      Appellant  is  a   beer  manufacturer.    In   1985            appellant  began brewing  Samuel  Adams  Boston  Lager  at  a            brewery in  Pittsburgh, Pennsylvania under  the name  "Boston            Beer Company."   The  Pittsburgh  facility was  independently            owned,  and appellant  operated  it  as  a  contract  brewer,            namely, one  who engages  another  to manufacture  beer in  a            brewery  owned  by  the  other.    Presently,  appellant  has            contract  breweries  in  Pittsburgh,  Utica,  New  York,  and            Portland, Oregon.                                         -2-                                          2                 In November 1988  appellant first began to brew  its own            beer at a brewery  located in Boston.   This also marked  the            first  time that  appellant actually brewed  any beer  in the            city that  shares its name.   Appellant has,  however, always            called Boston  its corporate home,  and virtually all  of its            assets and non-sales employees can be found in Massachusetts.                      Appellant's  "Boston"  brews  are  not  limited  to            Samuel Adams  Boston Lager.   In fact, appellant has  what it            refers to as  a "family" of "Boston"  beers.  In  addition to            Samuel Adams Boston  Lager, other members of  this family are            Boston  Lightship,   which  appellant   began  marketing   in            September  1987, and Samuel Adams Boston Ale, which appellant            began  marketing in  October 1988.1    Appellant's beers  are            marketed  and distributed  throughout the  United States  and            abroad.   Appellant  sells its  beers  to restaurants,  bars,            package  stores and  grocery stores  for resale; it  does not            make any sales directly to the public.                      Over  the  past  five  years  appellant  has  spent            substantial  amounts of money  promoting its products  in the            Boston  area.    From  1988  through  1992,  appellant  spent                                            ____________________                 1.  This  is not,  however,  the extent  of  appellant's            brews.  In  fact, appellant sports an entire  line of "Samuel            Adams"  beers, including:   "Samuel Adams  Cranberry Lambic,"            "Samuel  Adams  Cream  Stout,"  "Samuel Adams  Double  Bock,"            "Samuel  Adams  Triple  Bock,"  "Samuel  Adams  Oktoberfest,"            "Samuel  Adams Wheat  Brew," "Samuel  Adams  Winter Ale"  and            "Samuel Adams Winter Lager."                                         -3-                                          3            approximately $350,000  in advertising on major  Boston radio            stations.  Among the various  other promotional means used by            appellant are  billboards,  print advertising,  and sales  of            promotional materials such as coasters, balloons, hats, table            tents  and table  tent  holders.   By 1992  appellant's total            sales  in the  Boston area  had exceeded  $3 million  and its            total sales had exceeded $20 million.                      Appellee is  a restaurant and  brew pub.   On April            10, 1992, it  opened for business on Brookline  Avenue in the            Kenmore  Square section of Boston, directly across the street            from Fenway Park, home of the Boston Red Sox.  As a brew pub,            appellee is a licensed restaurant that brews beer on-site for            consumption  by its  patrons.   One  of the  beers brewed  by            appellee is named  "Boston Red."  In addition  to brewing and            serving its own beers, appellee offers a wide range of food.                      Appellant commenced this  action on April 14,  1992            alleging    trademark    and   trade    name    infringement,            misappropriation and  unfair competition pursuant  to   43(a)            of the Lanham  Act, 15 U.S.C.   1125(a), the  general laws of            the Commonwealth of Massachusetts and  common law.  The first            amended  complaint  alleged,  inter   alia,  that  appellee's                                          _____   ____            "adoption  of  `BOSTON  BEER WORKS'  made  with  knowledge of            Plaintiff's prior use of the trademark and trade name `BOSTON            BEER COMPANY'  and its  `BOSTON BRAND'  family of  trademarks            ...." constitutes a  violation of   43(a) of  the Lanham Act.                                         -4-                                          4            First Amended Complaint at   17.  On April 15 appellant moved            for a temporary restraining order to stop appellee from using            the names "Boston  Beer Works" and "Boston Red."   The motion            was denied the same day.                      On April  21  appellant  moved  for  a  preliminary            injunction.   After  two days  of hearings  and  argument the            district court denied the motion.   In a Memorandum and Order            dated June  18, 1992  (the "June  Memorandum"), the  district            court found that the  appellant's marks were not  entitled to            trademark2 protection.                      The district  court found  first that  "plaintiff's            `BOSTON BEER' mark as used  in its name `BOSTON BEER COMPANY'            is  sufficiently descriptive  so  as  not  to  be  considered            generic  and  thus  unprotectable."   June  Memorandum  at 9.            Next, the court found that "plaintiff's `BOSTON' mark as used            in its `SAMUEL ADAMS BOSTON' beers and its `BOSTON LIGHTSHIP'            beer  is a descriptive term."   In fact, the court found that            appellant did not even  contend that its marks  were anything            but descriptive.  Id.   Therefore, the court stated, in order                              ___            to  satisfy its  burden of  establishing that  its marks  are                                            ____________________                 2.  For purposes  of  this opinion,  the term  trademark            includes trade names as well.  Although there are differences            between the  two concerning, inter  alia, registration  under                                         _____  ____            the  Lanham  Act, the  differences  are not  relevant  to our            decision in  this case.   See Union National Bank,  Laredo v.                                      ___ ____________________________            Union National Bank, Austin, 909  F.2d 839, 841 n.2 (5th Cir.            ___________________________            1990)  (citing Blinded  Veterans Assoc.  v.  Blinded American                           ________________________      ________________            Veterans  Foundation, 872  F.2d 1035,  1040  n.11 (D.C.  Cir.            ____________________            1989)).                                         -5-                                          5            entitled  to trademark  protection,  "[p]laintiff must  still            make a  showing, under a  likelihood standard, that  its name            and marks have acquired secondary meaning."  Id.                                                         ___                      After reviewing the relevant preliminary injunction            considerations, the court  concluded that appellant  had "not            shown a likelihood  of establishing by a preponderance of the            evidence a secondary meaning for `BOSTON BEER' and `BOSTON.'"            Id.  at 15.    Specifically, the  court  found that  although            ___            appellant had been using  the name "Boston Beer  Company" and            the  term "Boston"  in connection  with  Samuel Adams  Boston            Lager since  late 1985,  not all  of appellant's  promotional            materials contained "The Boston Beer Company" name, and those            that did,  always used it  along with another  of appellant's            beer marks.   "For example,"  the court pointed out,  "on the            cards plaintiff prints  to be inserted  into table tents  for            restaurants  and bars, the `BOSTON BEER COMPANY' name appears            on  the bottom  of the  card with plaintiff's  `SAMUEL ADAMS'            logo and its  slogan `The Best Beer in  America' appearing at            the top of the card."  June Memorandum at 11.   Moreover, the            court found that  all of the promotions that  did include the            company's  name,  "place[d] the  name  on the  bottom  and in            smaller type  than the rest  of the words on  the promotional            item."  Id.                     ___                      As  far  as   the  labels  appearing  on   each  of            appellant's  three  "Boston"  beers,  the  court  noted  that                                         -6-                                          6            "Boston" did in fact appear in each of the beers' names.   In            addition,  the  court  found that  each  beer's  bottle label            contained an illustration   or logo, and that,  on bottles of            Samuel Adams  Boston Lager  and Boston  Lightship, the  words            "Samuel Adams" and "Lightship" were in larger print  than the            words "Boston  Lager" and  "Boston," respectively.   Finally,            the court found that the name "Boston  Beer Company" appeared            at the  bottom of  all appellant's labels  in a  smaller type            than either the illustration or the other words on the label.                      It  was   undisputed  that  appellant   engaged  in            substantial  advertising and promotion of its products in the            Boston  area.   The court  found,  however, that  appellant's            efforts  were  "focused  in  the  direction  of  promoting  a            connection   between    'SAMUEL   ADAMS'    and   plaintiff's            products[,]"  and  not  towards   establishing  a  connection            between  the terms "Boston  Beer" and  "Boston" and  its beer            products.  Id. at 15-16.  In reaching this  result, the court                       ___            examined   appellant's   billboards,   radio  advertisements,            various   promotional   paraphernalia,  and   a   promotional            brochure.   Finally,  the  court pointed  out  that the  vast            majority of  appellant's advertising is directed  towards its            best-selling  brand,  Samuel  Adams Boston  Lager,  and  that            appellant  produces other "Samuel  Adams" beers that  are not            part of its "Boston" family.  As the court also observed,                      [t]he fact that  plaintiff produces other                      Samuel Adams beers, with  the same Samuel                                         -7-                                          7                      Adams  logo  as  appears on  its  "Samuel                      Adams  Boston  Lager" and  "Samuel  Adams                      Boston Ale" beer labels, but without  the                      "BOSTON"   family   name,   reduces   the                      likelihood that a consumer will associate                      "BOSTON"    or    "BOSTON    BEER"   with                      plaintiff's products.            June Memorandum at 14-15.   In summary, the court found that,            notwithstanding  the  duration  of  appellant's  use  of  the            "Boston  Beer  Company"   name  and  the  term   "Boston"  in            connection with  three of its  products, it had  not directed            its  advertising  and promotional  activities  to  creating a            connection  between "Boston Beer"  and its products,  and had            not made efforts  at promoting a connection  between "Boston"            and its products, and therefore it had not shown a likelihood            of establishing secondary meaning.                      On February  9 and 10,  1993 a  non-jury trial  was            held, at the conclusion of  which the court gave its decision            from the bench.  The sole issues litigated were:  (1) whether            secondary meaning had attached to "Boston" and "Boston Beer,"            and (2) if  so, whether  a likelihood  of consumer  confusion            existed.  Appellant's  principal evidence at  trial consisted            of a consumer survey.                        The survey was conducted  among 400 "beer drinkers"            from the greater-Boston  area who were split  into two groups            of  200.     Each  group  was  provided  with   a  choice  of            approximately  20 beers  and asked  to identify  the  beer or            beers produced by  each of three different  "beer companies."                                         -8-                                          8            Both  groups were asked  about the "Latrobe  Brewing Company"            and the "Anheuser-Busch company."   One group was asked about            Boston Beer Company  and the other  about Boston Beer  Works.            Included  on the list  were appellant's three  "Boston" beers            which  appeared as  "Samuel Adams  beer,"  "Boston Ale,"  and            "Lightship."  The  other beers consisted of  various domestic            and imported brands.                      When  asked  what  brand of  beer  was  produced by            Boston  Beer Company, 36%  responded with Samuel  Adams beer.            Boston  Ale and Lightship each garnered 4%, and 59% responded            that they did not know.  Similarly, for the group asked about            Boston Beer  Works, 31% responded with Samuel  Adams, 4% with            Boston  Ale, 2%  Lightship  and 66%  could  not identify  any            brand.                      After hearing all of the evidence, the court found:                      The  principal  difference   between  the                      evidence that  was before me at  the time                      of the preliminary injunction hearing and                      the  evidence that  is before  me in  the                      full  development  of  the case  here  on                      trial  is  the  addition  of  the  survey                      evidence that the  plaintiff has offered.                      I find  that  that is  not sufficient  to                      establish a secondary  meaning and indeed                      as  fact finder I  find that it  does not                      even  strongly  support an  inference  of                      secondary meaning.                      The court went on to identify what it felt were two            problems  with the  survey.   First  it  had trouble  drawing            inferences  favorable to  appellant from  the survey  because                                         -9-                                          9            participants were  told  that they  were  going to  be  asked            questions about beer "companies" as opposed to a neutral term            such as "producers" or "brewers."                      Second  and more  importantly,  the district  court            found  that the survey results simply  did not provide strong            support for an inference of  secondary meaning.  In a lengthy            colloquy with  appellant's trial  counsel the  district court            explained that "[a] strong inference I draw from this is that            when the interviewee is prompted by three words, two of which            are 'Boston  Beer,' a  third of them  come back  with 'Samuel            Adams'."    "Is that  enough"  the  court queried,  "if  [the            interviewees are] just associating Samuel Adams with somebody            who produces beer in  Boston ...."  In other words, the court            found  that the  survey  provided a  strong  inference of  an            association  between  product  and  place,  but  not  between            product and source.3   This association, the  court believed,            explained the fact that similar percentages associated Samuel            Adams with Boston Beer Company and Boston Beer Works.                      According to the court, the results                      support[ed] an inference  of uncertainty,                      if not confusion,  as between Boston Beer                      Works and Boston  Beer Company, but  that                      is  not the issue that is decisive of the                                            ____________________                 3.  On this point, the district court commented:  "Well,            don't people associate Samuel Adams with Boston, at least any            of them  who  have their  American  history course  still  in            mind?"  The  court added that this might  particularly be the            case  with,    "upper-scale  Samuel  Adams beer  drinkers[.]"            Appendix at 608.                                         -10-                                          10                      adequacy  of the  evidence  before me  to                      show secondary meaning.   So taking  into                      account that evidence along with all  the                      other  evidence before  me, I  find  by a                      preponderance of the  evidence that there                      has  not  been  an  establishment  of   a                      secondary  meaning  that  associates  the                      product with Boston Beer Company.            Because  the trial court  found that appellant  had failed to            meet its burden on secondary meaning, the court did not reach            the issue of likelihood of confusion.  This appeal followed.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      Appellant argues that the  district court committed            legal  error by failing  to make an  independent finding that            the marks lack  "inherent distinctiveness," to go  along with            its finding that  the marks "Boston"  and "Boston Beer"  were            descriptive.  Alternatively, appellant contends that, even if            the court did not commit any  legal error on this front,  its            finding that the marks are descriptive was clearly erroneous.            Next, appellant argues that the district court's finding that            the survey was not highly probative of secondary  meaning was            clearly erroneous.   Alternatively,  appellant contends  that            the  district court misunderstood  the doctrine  of secondary            meaning.  Finally, appellant argues that the survey, standing            alone  or together  with the  other  evidence, established  a            likelihood of confusion as a matter of law, and therefore the            court's finding that  its marks lacked secondary  meaning was            illogical.                                         -11-                                          11                      Neither mark over which appellant asserts exclusive            rights  -  "Boston  Beer"  and  "Boston"  -  are  registered.            Therefore  the present  claim is  based upon    43(a)  of the            Lanham Act  which covers unregistered  trademarks.4   Section            43(a) prohibits any person from using                      in connection with any  goods ... or  any                      container for goods, ... any word,  term,                      name,   symbol,   or   device,   or   any                      combination  thereof  ...  which  ...  is                      likely to  cause confusion,  or to  cause                      mistake,  or  to deceive  ...  as to  the                      origin, sponsorship,  or approval  of his                      or her goods ... by another person.            15 U.S.C.    1125(a).   It  is settled  that    43(a) of  the            Lanham Act  protects qualifying unregistered marks,  and that            the  general  principles qualifying  a mark  for registration            under    2  of the  Lanham  Act are  generally applicable  in            determining  whether  an  unregistered  mark  is  entitled to            protection under    43(a).   Two Pesos, Inc. v.  Taco Cabana,                                         _______________     ____________            Inc., __ U.S. __ , 112 S. Ct. 2753, 2757 (1992).            ____                      A  court's  inquiry  into  whether  a  term  merits            trademark protection  starts with the classification  of that            term along the spectrum of  "distinctiveness."  At one end of            the  spectrum there are  generic terms that  have passed into            common usage to identify a  product, such as aspirin, and can                                            ____________________                 4.  A trademark is  defined as "any word,  name, symbol,            or device,  or any  combination thereof used  by a  person to            identify and distinguish his or her goods, including a unique            product, from  those manufactured  or sold  by others and  to            indicate  the source  of the  goods, even  if that  source is            unknown."  15 U.S.C.   1127.                                         -12-                                          12            never be protected.   Two Pesos, 112  S. Ct. at 2757;  Miller                                  _________                        ______            Brewing Co.  v. Falstaff  Brewing Co., 655  F.2d 5,  7-8 (1st            ___________     _____________________            Cir. 1981).   In the middle  there are so-called  descriptive            terms, such as  a geographical term, which  can be protected,            but  only if  it  has acquired  "secondary meaning"  by which            consumers  associate it with a particular producer or source.            Two Pesos, 112 S. Ct.  at 2757; Volkswagenwerk AG v. Wheeler,            _________                       _________________    _______            814 F.2d 812, 816 (1st  Cir. 1987).  At the other end  of the            spectrum, there are suggestive, arbitrary  and fanciful terms            that can  be protected  without proof  of secondary  meaning.            These  terms are  considered  "inherently distinctive."   Two                                                                      ___            Pesos, 112  S. Ct. at  2757; see Wiley v.  American Greetings            _____                        ___ _____     __________________            Corp.,  762 F.2d  139,  141  (1st Cir.  1985)  ("a design  is            _____            considered  'inherently distinctive'  if  it  is fanciful  or            arbitrary") (footnotes omitted).                      Once the determination has been made that a term is            entitled to trademark protection, the pivotal inquiry becomes            whether  the allegedly  infringing mark  is  likely to  cause            consumer  confusion.  See Boston Athletic Assoc. v. Sullivan,                                  ___ ______________________    ________            867 F.2d 22,  28 (1st Cir.  1989); Wheeler, 814 F.2d  at 817.                                               _______            That is, whether a consumer  is likely to believe that Boston            Beer Works' products are in  fact produced by The Boston Beer            Company.                      Whether  a   term  is   generic,  descriptive,   or            inherently distinctive is a question of fact.  See Wiley, 762                                                           ___ _____                                         -13-                                          13            F.2d  at  141.    Similarly,  whether  a  mark  has  acquired            secondary meaning is  also a question of fact.   Wheeler, 814                                                             _______            F.2d at  816.  Accordingly, the district  court's findings on            both of these questions are  subject to review only for clear            error.   Atlantic Track  & Turnout Co.  v. Perini  Corp., 989                     _____________________________     _____________            F.2d 541, 543 (1st Cir. 1993).                      As this  court has  previously noted,  "[t]he clear            error hurdle  is ...  quite high."   Lenn v.  Portland School                                                 ____     _______________            Committee, 998 F.2d 1083, 1087 (1st Cir. 1993).  Of course, a            _________            district court's rulings of law are reviewed de novo.  Id.                                                         __ ____   ___            A.  Inherent Distinctiveness            A.  Inherent Distinctiveness                ________________________                      At  the outset,  appellant contends that  its marks            are inherently  distinctive, as  opposed to descriptive,  and            are therefore entitled to  trademark protection without proof            of secondary  meaning.   Because we  hold that appellant  has            failed  to preserve the issue of inherent distinctiveness for            appeal, we decline to reach the merits of its contentions.                      The   law  in  this  circuit  is  crystalline:    a            litigant's  failure to explicitly  raise an issue  before the            district court forecloses  that party from raising  the issue            for the  first time  on appeal.   See McCoy  v. Massachusetts                                              ___ _____     _____________            Institute of  Technology, 950  F.2d 13,  22 (1st  Cir. 1991),            ________________________            cert. denied, 112 S. Ct. 1939 (1992).            _____ ______                      After  scouring  the  record,  we  have  failed  to            uncover  a   single  instance,  either   orally  or   through                                         -14-                                          14            submission,  where appellant  advocated that  its marks  were            anything  but descriptive.    From the  very  outset of  this            litigation appellant had pitched its case on the theory  that            its  marks are descriptive, that they have attained secondary            meaning, and are thus entitled to trademark protection.   The            trial  below proceeded on  the common understanding  that the            marks  were  descriptive;  and  appellant  acknowledged  that            secondary meaning and  likelihood of confusion were  the only            triable  issues.     Moreover,  after  rendering  its   bench            decision, the trial  court asked appellant if  any additional            findings  were  necessary in  order  to  address all  of  its            claims, and  appellant did not request a  finding on inherent            distinctiveness.                      According to appellant, it  preserved this issue by            underlining, and  thereby objecting  to, appellee's  proposed            pre-trial  finding that the marks were "neither arbitrary nor            fanciful."   Appendix  at 444.    We have  little trouble  in            finding  that the  act  of  underlining  is  insufficient  to            preserve  this  issue  for appeal.    See  Rodriguez-Pinto v.                                                  ___  _______________            Tirado-Delgado, 982 F.2d  34, 41 (1st Cir.  1993) ("arguments            ______________            made  in  a perfunctory  manner  below are  deemed  waived on            appeal").   Because  we see  no  reason to  diverge from  our            customary practice, we treat this argument as waived.            B.  Secondary Meaning            B.  Secondary Meaning                _________________                                         -15-                                          15                      Because appellant's marks are descriptive, they are            entitled  to  trademark  protection only  upon  a  showing of            secondary meaning.  Secondary meaning                      refers to a word's, or a sign's,  ability                      to  tell the public that the word or sign                      serves  a  special   trademark  function,                      namely,  that  it  denotes a  product  or                      service  that  comes  from  a  particular                      source.  Words and phrases, in  ordinary,                      non-trademark, use normally  pick out, or                      refer  to,  particular  individual  items                      that exhibit the characteristics that the                      word or phrase connotes (without specific                      reference to the item's source).            DeCosta v. Viacom International, Inc., 981 F.2d 602, 606 (1st            _______    __________________________            Cir. 1992),  cert. denied, 113  S. Ct. 3039 (1993);  see also                         _____ ______                            ___ ____            Wheeler, 814 F.2d at 816 ("words which have a primary meaning            _______            of  their  own  ... may  by  long  use in  connection  with a            particular  product,  come  to  be  known  by  the public  as            specifically    designating    that     product")    (quoting            Volkswagenwerk  AG v. Rickard,  492 F.2d  474, 477  (5th Cir.            __________________    _______            1974));   President  &  Trustees of  Colby  College v.  Colby                      _________________________________________     _____            College-N.H., 508 F.2d  804, 807 (1st Cir. 1975)  (a name has            ____________            achieved  secondary meaning  when "a significant  quantity of            the  consuming   public  understand  the  name  as  referring            exclusively  to  the   appropriate  party").     Accordingly,            secondary meaning  has been  established in  a geographically            descriptive  mark where the mark no  longer causes the public            to associate  the  goods  with a  particular  place,  but  to            associate the goods with a particular source.  Burke-Parsons-                                                           ______________                                         -16-                                          16            Bowlby Corp. v. Appalachian Log Homes, 871 F.2d 590, 595 (6th            ____________    _____________________            Cir.  1989)  (citing  American  Footwear   Corp.  v.  General                                  __________________________      _______            Footwear Co. Ltd., 609 F.2d  655 passim (2d Cir. 1979), cert.            _________________                ______                 _____            denied, 445 U.S. 951 (1980)).            ______                      "Proof  of   secondary  meaning   entails  vigorous            evidentiary   requirements."      Perini   Corp.  v.   Perini                                              ______________       ______            Construction,  915 F.2d  121, 125  (4th  Cir. 1990)  (quoting            ____________            Thompson Medical  Co. v. Pfizer  Inc., 753 F.2d 208,  217 (2d            _____________________    ____________            Cir. 1985)); see Bank  of Texas v. Commerce  Southwest, Inc.,                         ___ ______________    _________________________            741  F.2d  785,  787  (5th  Cir.  1984)  (evidentiary  burden            necessary to establish secondary meaning for a geographically            descriptive term is substantial).  Moreover, it is the  party            seeking protection of a mark  who bears the burden of proving            that secondary  meaning has attached.   Bristol-Meyers Squibb                                                    _____________________            Co.  v. McNeil-P.P.C.,  Inc., 973  F.2d 1033,  1041  (2d Cir.            ___     ____________________            1992);  Blinded Veterans Assoc., 872 F.2d at 1041.                    _______________________                      To  establish   secondary  meaning   in  the   mark            "Boston," not only  must appellant prove  that, when read  or            heard  by  consumers  in connection  with  beer,  "Boston" no            longer means  that the  beer  was brewed  in Boston  or by  a            Boston-based brewer, but that the consuming public recognizes            that the word "Boston" identifies  appellant as the source of            the beer.                      Similarly, with respect to the mark  "Boston Beer,"            as  used  in  appellant's  name,  The  Boston  Beer  Company,                                         -17-                                          17            appellant  must prove  that  a  substantial  portion  of  the            consuming  public associates  those  words specifically  with            appellant's  business.   See Perini Corp.,  915 F.2d  at 125.                                     ___ ____________            "But  secondary meaning cannot be recognized where, despite a            degree of association between the mark and the  producer, the            original  meaning remains  dominant;  so  long  as  the  mark            remains descriptive  in its primary  significance, subsidiary            connotations  cannot   justify  trademark  treatment."     R.            Callmann, Unfair  Competition, Trademarks  and Monopolies,                         _______________________________________________            19.26  at 144 (4th ed. 1989); see Burke-Parsons-Bowlby Corp.,                                          ___ __________________________            871  F.2d  at  595  (geographically  descriptive  term  lacks            secondary  meaning if it still primarily denotes a geographic            area as opposed to a single source).                      Among  the factors this court generally looks to in            determining  whether a  term has  acquired secondary  meaning            are:                      (1) the length and manner of its use, (2)                      the nature and  extent of advertising and                      promotion of the mark and (3) the efforts                      made in  the  direction  of  promoting  a                      conscious  connection,  in  the  public's                      mind,  between  the name  or  mark  and a                      particular product or venture.            Wheeler,  814 F.2d  at  816  (quoting  Volkswagenwerk  AG  v.            _______                                __________________            Rickard, 492 F.2d  at 478).  Proof relating  to these factors            _______            constitutes circumstantial evidence  from which a court  must            draw  reasonable  inferences.   In  its  bench  decision, the            district court found,  and appellant does not  dispute, that,                                         -18-                                          18            except  for the survey, the evidence of secondary meaning was            not  materially  different  at  trial  than  it  was  at  the            preliminary injunction  hearing.   The  court then  concluded            that  the  addition  of  the  survey  to  the  circumstantial            evidence did not alter its prior findings, and that appellant            had not met its burden of establishing secondary meaning.  In            its brief appellant  does not explicitly address  the court's            earlier  findings.    Instead,  appellant  alleges  that  the            court's treatment of the survey is  grounds for reversing its            finding on secondary meaning.  We turn to the survey.                      Survey evidence has become a well-recognized  means            of   establishing  secondary  meaning.    See  President  and                                                      ___  ______________            Trustees of Colby College, 508 F.2d at 809; Papercutter, Inc.            _________________________                   _________________            v.  Fay's Drug Co.,  Inc., 900 F.2d 558,  564 (2d Cir. 1990).                _____________________            In  fact, consumer surveys and  testimony are the only direct            evidence on this question.  See International  Kennel Club v.                                        ___ __________________________            Mighty  Star, Inc.,  846  F.2d 1079,  1085  (7th Cir.  1988).            __________________            Appellant  explains  its  survey  in  three  steps.    First,            appellant points to the percentage of participants, 36 and 31            percent respectively,  who identified The Boston Beer Company            and Boston Beer  Works as the producer of  Samuel Adams beer.            Next, appellant  contends that  this correlation  proves that            the  public associates  Samuel  Adams  beer  with  the  words            "Boston  Beer."  Finally,  appellant concludes that secondary            meaning has been established because whenever a consumer sees                                         -19-                                          19            or  hears  the term  "Boston  Beer,"  it  will associate  the            product with the  brewer of Samuel Adams beer.   The district            court found  that the survey  did not bridge the  logical gap            between steps two and three.                       Our examination  of  the  survey  and  its  results            convinces  us that,  while  the  survey  might  provide  some            evidence of secondary meaning, the district court's treatment            of  the survey  was  not  clearly  erroneous.    The  court's            finding, that the survey results  demonstrate a product-place            association  as opposed to  a product-source  association, is                                                  ______            not  inconsistent with  the survey  results,  and provides  a            viable alternative to the explanation proffered by appellant.                      Just  because  one-third  of those  surveyed,  when            presented  with a  list  of  beers and  a  brewer whose  name            contained the words  "Boston Beer," matched that  brewer with            Samuel Adams  beer,  does not  mean  that the  words  "Boston            Beer,"  used  in  connection  with  appellant's   name,  have            necessarily  assumed  a secondary  meaning.   It  is  just as            ___________            probable, as  the  district  court  lucidly  explained,  that            appellant's marks  are still primarily perceived by consumers            as geographically  descriptive terms, and that  consumers are            simply  aware of  the  fact  that Samuel  Adams  is a  Boston            beer.5   Moreover,  the  district  court  observed  that  the                                            ____________________                 5.  Even assuming that appellant's reading of the survey            results is the  correct one, a positive response  rate of 36%            is hardly  overwhelming.   See generally  Callmann, supra,                                          ___ _________            _____                                         -20-                                          20            survey was somewhat suggestive in that it gave the impression            that Boston Beer  Works was a "company,"  like Anheuser-Busch            and Latrobe, as opposed to a restaurant/brew pub.                      Furthermore,    if    the    survey   unequivocally            establishes  secondary meaning in the marks "Boston Beer" and            "Boston,"  then we are at a  loss to understand why, when 36%            of those surveyed thought that  Samuel Adams beer was  brewed            by The Boston Beer Company, only 4% of the same group thought            that Boston  Ale was also produced by  that company.6  If the            marks  have acquired secondary  meaning, the same  people who            selected Samuel Adams as one of appellant's brews should have            selected Boston Ale as well.                      Because  the district  court's ultimate  finding on            secondary  meaning  was  based   upon  its  consideration  of            circumstantial as well as direct evidence, we briefly discuss            the former.   We have already set forth  the relevant factors            for considering circumstantial evidence of secondary meaning,            as  well  as the  district court's  thorough analysis  of the            evidence thereunder.   The district court's finding  that the            circumstantial evidence  of secondary meaning did not support            an inference favorable to appellant is well-supported.                                            ____________________            19.27.50 at 205 (collecting cases).                 6.  Additionally,  it is  possible  that  there  was  no            overlap between the people who selected Samuel Adams beer and            those who selected Boston Ale.                                         -21-                                          21                      After   reviewing   the  entire   record,   placing            particular emphasis  on appellant's  survey, we  can find  no            error,  clear or otherwise,  in the district  court's finding            that   appellant  failed  to  carry  its  burden  of  proving            secondary meaning.                      Next  appellant   argues  that   the  trial   court            committed  legal error by "rejecting" the survey for "failure            to show any consumer identification of `company'."  According            to appellant this  was a mistake because the  Lanham Act does            not  require that the  consumer actually know  the producer's            name.  As  a preliminary matter, appellant  is incorrect when            it states that the district court "rejected" the survey.  The            district court accepted the survey  into evidence and gave it            careful consideration  before concluding that the  survey did            not provide a basis for a finding of secondary meaning.                      Furthermore,  appellant  incorrectly  attributes  a            legal  error  to  the  court.    At  the  risk  of  repeating            ourselves,  the district court  found that appellant  had not            met its burden of proving that its marks had come to identify            a single  source of beer  as opposed to simply  identifying a            geographic  origin.   This  finding  does  not rest  upon  an            erroneous view of the law.                      Finally, appellant  tries  to  execute  an  end-run            around the  district  court's finding  on secondary  meaning.            Appellant maintains  that because the  survey demonstrates  a                                         -22-                                          22            likelihood  of consumer  confusion  between  The Boston  Beer            Company  and  its products  and  Boston  Beer Works  and  its            products,  secondary meaning  must exist.   While it  is true            that a finding of a  likelihood of confusion could only occur            in this case if secondary meaning had attached to appellant's            marks,  appellant's  argument  places  the  cart  before  the            Clydesdale.                       The  district court  found  that appellant's  marks            were  not entitled to  trademark protection because  they had            not  attained secondary meaning.  Accordingly, that court did            not need to address the  question of likelihood of confusion.            The determination  as to  whether a  likelihood of  confusion            exists is a question of fact.  See Aktiebolaget Electrolux v.                                           ___ _______________________            Armatron  International, Inc., 999 F.2d 1,  3 (1st Cir. 1993)            _____________________________            (citing  Keds Corp. v. Renee International Trading Corp., 888                     __________    _________________________________            F.2d  215,  222  (1st  Cir. 1989)).    This  determination is            generally  based upon eight  separate factors, each  of which            requires its own factual findings.   See id. (setting out the                                                 ___ ___            eight  factors).    Because we  affirm  the  district court's            finding on secondary  meaning, we need not  address the issue            of likelihood of confusion.                      Affirmed.                      Affirmed.                      ________                                         -23-                                          23
