Where a proposed trademark is merely descriptive of the relevant goods or services, acquired distinctiveness through secondary meaning is required for trademark rights. See In re Steelbuilding.com, 415 F.3d 1293, 1300 (Fed. Cir. 2005). When a mark is highly descriptive, the evidentiary burden of establishing acquired distinctiveness is substantial. Id. at 1296. Circumstantial evidence such as length of use and advertising expenditures, standing alone, is often insufficient. Direct evidence of consumer recognition—such as consumer surveys or declarations from customers or others in trade—is particularly important in such cases. Id.

In Newton, Udinson, & Hill PLLC v. Sigal Law Firm, PLLC, Opposition No. 91289155 (TTAB July 13, 2026), the Board found that the common law mark WIN BIG LAW for legal services was merely descriptive and had not acquired distinctiveness.

... The word WIN is laudatory, suggesting success or victory in legal proceedings. Opposer admits this in an office action response issued with regard to its pleaded pending application
for WIN BIG LAW: “The term WIN is commonly used among registrations for legal services, and is therefore a weak term with regard to legal services and entitled to only a narrow scope of protection.” The term BIG is likewise laudatory, implying large, significant, or superior results. And the term LAW, which Opposer has disclaimed in its application,43 is descriptive or generic for legal services.

     * * *

“The compound term [WIN BIG LAW] will be found merely descriptive if the individual components retain their descriptive meaning in relation to the services and the combination does not form a mark which has a distinct nondescriptive meaning of its own as a whole.” Oppedahl & Larson, 373 F.3d at 1374. “However, if those [three] portions individually are merely descriptive of an aspect of [Opposer's services], the PTO must also determine whether the mark as a whole, i.e., the combination of the individual parts, conveys any distinctive source-identifying impression contrary to the descriptiveness of the individual parts.” Id.

     Here, the combination WIN, BIG, and LAW as “WIN BIG LAW” does not create a unique or incongruous commercial impression. Instead, as Opposer admits in its pleaded pending application for that same mark: “The Applicant's mark WIN BIG LAW uses WIN as a verb, BIG as an adverb, and LAW as a noun, where the meaning of the phrase is a law practice that “wins big” on behalf of its clients, and the commercial impression is that the mark describes the service provider.” This is precisely the type of laudatory, outcome-oriented message that has been held merely descriptive in analogous contexts. See Boston Beer, 198 F.3d at 1373-74; In re The Place, Inc., No. 76436826, 2005 TTAB LEXIS 451, at *6-7 (finding “THE GREATEST BAR” “laudatory and merely descriptive”). 

Thus, the phrase ‘WIN BIG' was merely descriptive or laudatory and so commonly used that it lacks distinctiveness. 

While evidence of substantial advertising expenditures, social media activity, and billboards may demonstrate commercial promotion of the claimed mark,  the case here lacked objective evidence such as consumer surveys or third-party declarations showing that the relevant consumers perceive WIN BIG LAW as identifying that party as the source of the services, rather than as a promotional slogan touting successful results. See, e.g., Heritage Alliance v. Am. Policy Roundtable, 133 F.4th 1063 (Fed. Cir. 2025) (affirming the Board's dismissal of the opposition based on the opposer's failure to prove that “iVoterGuide” and “iVoterGuide.com” (used for voter guide/information services) had acquired distinctiveness); Comptime, Inc. v. E. Frances Paper, Inc., No. 92073884, 2023 TTAB LEXIS 597, at *19-23 (customer reviews, ten years of substantially exclusive use, advertising expenditures, and around $1.825 million in revenue insufficient to establish acquired distinctiveness); In re Candy Bouquet Int'l, Inc., 2004 TTAB LEXIS 544, at *19-20 (applicant's evidence of 14 years of use, advertising expenditures, and approximately $9.9 million in revenues held insufficient to establish acquired distinctiveness). 

The Board dismissed the oppostion under Section 2(d) against the applied-for 844-I-WIN-BIG mark because the asserted WIN BIG LAW mark was highly descriptive and the evidence of record fell short of the substantial showing required to establish acquired distinctiveness.