[kragen]

Mostly I agree, and I'm sorry I went off on you like that. Cases like ConAgra v. Singleton take acquiescence further than simple laches. But acquiescence certainly didn't lose ConAgra their trademark in that case; it just allowed Singleton to keep using it as well, but only for some of his products.

"Heroin" is "inherently distinctive" in that it's a totally made-up word; it isn't a purely "generic" term like "Windows" or even a "descriptive" term like "Whole Foods". Even in German. The drug isn't literally extracted from heroes, it doesn't contain heroes, nothing like that. The reference here is to the spectrum of https://en.wikipedia.org/wiki/Trademark_distinctiveness. Even if most of the caselaw cited there is anachronistic in this case, many of the principles already existed at the time.

[tialaramex]

I see what you're saying on the distinctiveness though I think you're too generous to Bayer, this feels like how "Nutrisse" hair products are clearly intended to give customers the (false and indeed illegal if claimed) impression they're good for your hair. "Nutrisse" isn't a word but we do both see what the intent is right?

The Singleton thing is also a name problem, I think the court's sympathy ran out when there's re-use of branding material and evidence of actual confusion which is ultimately what these laws are trying to prevent.

[kragen]

Yeah, "Nutrisse" is clearly a defensible trademark, being all the way at the "fanciful/inherently distinctive" end of the distinctiveness spectrum.