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The test for genericness is based upon a term's "primary significance" to the buying public. The single question in all these cases, is merely one of fact: What do buyers understand by the word for whose use the parties are contending? A term is generic when the majority of the buying public associates the term with a product, rather than the source of the product, whether the source is known or unknown. In general, the buying class refers to consumers, rather than professionals in the trade.
Plaintiff Horizon Mills Corp. ("Horizon") owned a trademark for fabrics used in clothing and household products. Defendant QVC, Inc. ("QVC") provided home-shopping retail services. QVC stated that it used the terms "slinky," "slinky knit," and "slinky fabric" to describe a certain fabric and the apparel made therefrom. Horizon sued to enjoin such use on the ground it was infringing, and to recover damages. QVC moved for summary judgement on the ground that the generic nature of the terms in question barred Horizon’s claims. Its argument was twofold. First, it contended that the term "slinky" was generic to the relevant category of products prior to Horizon’s use and registration. Second, it contended that the public had appropriated the term "slinky" for the stretchy fabric and women's apparel made from spandex, therefore precluding exclusive use of the term by any manufacturer.
Was QVC’s claim that the generic nature of the terms in question bar Horizon's claims tenable?
The court found that QVC had not adequately met its burden of showing either that (i) that Horizon appropriated a previously generic term for use as a trademark, or that (ii) the term's principal significance among the buying public was a type of material rather than an indication of the source of such material. QVC’s motion was denied because the court found that a genuine issue of material fact existed as to whether "slinky" had become generic, and therefore whether it was still entitled to protection as a trademark upon a showing of secondary meaning.