It has been used for over 40 years, advertised and promoted nationwide to the public for 30 years, and is sold in major retail chain stores throughout the United States. The mark has been in use for more than twenty-four years, has received worldwide publicity, has been registered and used since 1983, and the organization has expended a considerable amount of money on advertising to publicize its name and its message. More interesting analyses arise when a mark's fame is questionable, when a mark is either famous or distinctive but not both, and when a mark is famous only within a niche. Difference Between Distinctiveness and Fame Several of the factors used to assess fame are also used to assess distinctiveness. Despite the similarity of the analyses, courts have made clear that famousness and distinctiveness are discrete characteristics of a mark.
Fame is akin to celebrity, distinctiveness to uniqueness.
It seems most unlikely that the statute contemplates allowing the holders of such common, albeit famous, marks to exclude all new entrants. That is why the statute grants that privilege only to holders of distinctive marks. Very recently, the Second Circuit again elaborated on the differences between distinctiveness and fame, concluding that the FTDA does not protect marks that have acquired distinctiveness by virtue of having achieved secondary meaning. Rather, it only protects marks that are inherently distinctive - that is, marks that are suggestive, arbitrary or fanciful. 22 Third, the court's extremely narrow definition of fame appears to conflict with the niche market theory, which has been accepted in several circuits.