An Introduction to “Secondary Source” use of Trademarks

A trademark usually functions as a source indicator – a symbol of the goodwill of the manufacturer, producer, or distributor of a product.  Many U.S. trademark applications are refused for consisting of “merely ornamental” material.  In other words, a trademark must carry branding connotations for the product in question:  A company’s trademark on a t-shirts hangtag associates that t-shirt with said company’s brand and quality.
Nontraditionally, trademark owners may license their marks for use on promotional products on which they do not seek to identify themselves as the “primary,” but the “secondary source,” instead.  A “secondary source” is a party that authorizes, sponsors, or licenses its trademark.  Most commonly, this occurs when promoting ones brand through products unrelated to the goods or services usually associated a particular trademark.  As an illustration, a beverage company may license the manufacture of t-shirts with its trademark printed on them.  In this case, the primary purpose of the t-shirts would be to show affiliation with the trademarked beverages.  This does not mean that the beverage company has begun manufacturing t-shirts – they are not the “source” of the t-shirts, per-say – but they authorized them.  In this case, the beverage company whose trademark is printed on the t-shirt is the “secondary source”.  Because of this nontraditional use of trademarks, trademark owners may even be able to register trademarks for products they do not themselves produce (such as t-shirts) if they satisfy the other traditional requirements.
To determine whether material serves a source-indentifyfng function or is merely ornamental, the Trademark Office considers what sort of ornamentation is standard for the goods at issue.  Additional criteria for broadened protection includes public perception of the mark, whether it is well-known.