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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 24-12653
U.S. ALL STAR FEDERATION, INC.,
Plaintiff-Counter Defendant- Appellant,
VARSITY SPIRIT, LLC
Counter Defendant,
versus
OPEN CHEER & DANCE CHAMPIONSHIP SERIES, LLC,
d.b.a Allstar Worlds Championship/Allstar Worlds,
THE OPEN CHEER AND DANCE, LLC,
d.b.a. Allstar Worlds Championship/Allstar Worlds,
DAVID OWENS,
HEIDI WEBER,
JEB HARRIS,
DAVID HANBERY,
Defendants-Counter Claimant-Appellees.
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2 Opinion of the Court 24-12653
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-02135-WWB-DCI
Before JORDAN and MARCUS, Circuit Judges, and JONES, * District
Judge.
MARCUS, Circuit Judge:
This case features a spirited battle of trademarks tied to the
sport of competitive international cheerleading. The combatants
are two cheerleading organizations, fighting over the validity of a
set of contested marks: “THE CHEERLEADING WORLDS” and
“WORLDS.” The former mark is published on the Supplemental
Register by the U.S. Patent and Trademark Office (“PTO”); the latter is an unregistered mark claimed under common law.
U.S. All Star Federation, Inc. (“USASF”) launched the first
volley, suing Open Cheer & Dance Championship Series, LLC and
The Open Cheer and Dance, LLC (the “Open Cheer Entities”),
along with their owners and operators (collectively “Open Cheer”),
in the Middle District of Florida, claiming that Open Cheer infringed on both marks by hosting a competing cheerleading tournament, known as the “Allstar World Championship” or “Allstar
Worlds.” In the end, however, Open Cheer took the field. The
district court rejected all of USASF’s trademark infringement
* Honorable Steve C. Jones, United States District Judge for the Northern
District of Georgia, sitting by designation.
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24-12653 Opinion of the Court 3
claims, granting summary judgment for Open Cheer. It concluded
that the two cheerleading marks were generic as a matter of law,
and therefore insufficiently distinctive to receive any protection under state or federal law.
We disagree. Although the district court was right to review
on the merits whether the marks are distinctive, since that issue
was not foreclosed by the earlier dismissal of USASF’s affirmative
defenses, a review of the considerable body of evidence presented
by USASF on the usage of the two marks has convinced us that
there are critical fact questions in dispute -- including whether the
marks are descriptive and have acquired secondary meaning -- that
cannot be resolved at summary judgment. On the record before
us, a reasonable jury could find that USASF’s two marks are sufficiently distinctive to warrant trademark protection.
Accordingly, we reverse the judgment of the district court
and remand for further proceedings consistent with this opinion.
I.
USASF is a sanctioning organization that governs and organizes events for “All Star” cheerleading and dance, a competitive
form of coordinated cheerleading where athletes represent private
clubs and gyms instead of a given sports team or school. Since
2004, in conjunction with the International All Star Federation
(“IASF”) and the International Cheer Union (“ICU”), USASF has
conducted an annual, week-long event at Disney World in Orlando, Florida known as “Championship Week,” which has two
component competitions: “The Cheerleading Worlds” and “The
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Dance Worlds.” “The Cheerleading Worlds,” or simply “Worlds,”
is a season-end championship hosting the highest-level All Star
teams from the United States and around the world. During the
regular season, teams compete to earn “bids” based on their
“level”; USASF’s event features athletes in three distinct levels (5,
6, and 7).
USASF claims it holds two valid trademarks in connection
with its annual competition: (1) THE CHEERLEADING
WORLDS and (2) WORLDS. As for the first of these marks,
USASF owns a federal registration on the Supplemental Register
(Registration No. 2,999,331). USASF also asserts that due to its
“long-standing and substantially exclusive use of the marks,” as
well as “the significant goodwill it has built up in these marks over
the past 20 years,” it possesses a common law right to both marks.
USASF has filed two applications with the PTO for publication on
the Principal Register for THE CHEERLEADING WORLDS and
THE CHEERLEADING WORLDS (design), which remain pending.
David Owens, Heidi Weber, Jeb Harris, and David Hanbery
(the “Individual Appellees”), formerly members of USASF, are the
sole owners of the Open Cheer Entities. Starting in 2020, Open
Cheer began promoting a different season-end All Star cheerleading competition, known as the “Allstar World Championship” or
“Allstar Worlds.” The competition caters to “younger athletes in
levels 1 through 5 but not level[s] 6 or 7.” Allstar Worlds is conducted around the same time as USASF’s Championship Week,
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and is held nearby, at the Orange County Convention Center in
Orlando, Florida. USASF claims that since its launch, Allstar
Worlds has “resulted in significant confusion in the marketplace,”
because athletes, parents, reporters, and other competition-goers
have confused Allstar Worlds with The Cheerleading Worlds.
On December 21, 2021, USASF fired a shot across the bow,
commencing this lawsuit against Open Cheer in the Middle District
of Florida. USASF sought to enjoin the alleged infringement of its
marks, recover damages, disgorge unlawfully obtained profits, and
procure treble and punitive damages. In defense of its marks,
USASF brought five claims: (1) infringement of USASF’s federal
trademark, THE CHEERLEADING WORLDS, under the Lanham
Act, 15 U.S.C. § 1114(1)(a); (2) infringement of USASF’s common
law trademarks, WORLDS and THE CHEERLEADING
WORLDS, under the Lanham Act, id. § 1125(a); (3) infringement
of USASF’s common law trademarks, WORLDS and THE
CHEERLEADING WORLDS, under Florida common law; (4) unfair competition under Florida common law; and (5) civil conspiracy under Florida common law.
Open Cheer returned fire on April 4, 2022, denying the factual predicates of USASF’s claim -- and in particular, that USASF’s
marks “are well-known and have acquired distinctiveness among
its membership and among the All Star cheer and dance community more broadly.” Open Cheer’s Answer also asserted affirmative defenses against the marks’ distinctiveness, including one that
stated: “Plaintiff’s claims are barred, in whole or in part, because
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Plaintiff’s alleged marks are merely descriptive, lack secondary
meaning, and/or are generic.”
USASF moved to strike several of Open Cheer’s affirmative
defenses under Federal Rule of Civil Procedure 12(f). Of note, the
motion challenged the affirmative defense on the distinctiveness of
USASF’s marks, claiming it was conclusory and legally insufficient.
On August 29, 2023, the parties jointly moved to dismiss the affirmative defenses identified in the motion to strike, including the one
claiming USASF’s marks were generic. The district court granted
the motion, dismissing the defenses with prejudice.
Thereafter, Open Cheer moved for summary judgment. It
claimed that (1) USASF did not have a valid and protectable trademark, because the two marks were generic, or were descriptive
without secondary meaning; (2) the assignment agreement which
gave USASF initial ownership of the two marks was unenforceable;
(3) USASF could not show its marks were unlawfully used; and (4)
there was no likelihood of confusion between USASF’s marks and
Open Cheer’s marks. In response, USASF argued, among other
things, that Open Cheer was barred from raising the matter of distinctiveness at summary judgment, since the earlier order dismissing Open Cheer’s affirmative defenses was entered with prejudice,
precluding all further litigation of the issue.
The district court granted summary judgment on all counts
in favor of Open Cheer. First, the court held that the assignment
of the marks to USASF was valid and granted USASF standing to
sue, a holding which neither side now challenges. The court then
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reached the pivotal question of distinctiveness, explaining that
Open Cheer was not precluded from raising the matter on summary judgment, because “distinctiveness, or non-genericness, is an
essential element of Plaintiff’s case on which Plaintiff bears the burden of proof,” meaning “Defendants were not required to raise genericness as an affirmative defense in this case.”
On the merits, the court found that the two marks were not
sufficiently distinctive to merit any legal protection. The court examined many dictionary definitions of “cheerleading” and “world”
and concluded that the marks, which were comprised of these
words, were not suggestive. It went on to find that the marks were
generic, since they described the “basic nature of the service”
USASF offers. Critically, the court determined that although
“Plaintiff does point to some evidence showing non-generic use of
the Cheerleading Marks,” this evidence “f[ell] short of creating a
genuine dispute of material fact,” since USASF’s event was supposedly the only season-ending cheerleading championship in All Star
cheerleading at the time, thereby explaining away any public association between the contested marks and USASF’s event.
This timely appeal followed. USASF challenges the district
court’s ruling on three grounds: first, that Open Cheer ought to
have been barred from addressing the marks’ distinctiveness at
summary judgment, because the dismissal with prejudice of Open
Cheer’s affirmative defense effectively operated as a judgment on
the merits of the issue; second, that the court erred in weighing
evidence on the factual question of distinctiveness, and employed
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the wrong genericness standard; and, finally, that the court’s conclusion that USASF’s two marks were generic was in error, since
the record evidence is sufficient to establish a genuine dispute of
fact as to the distinctiveness of the disputed marks, either because
the marks are suggestive, or because they are descriptive and have
taken on secondary meaning.
II.
We review a grant of summary judgment de novo, “applying the same legal standards used by the district court.” Yarbrough
v. Decatur Hous. Auth., 941 F.3d 1022, 1026 (11th Cir. 2019) (quoting
Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008)). Summary
judgment is granted where the proffered evidence “show[s] that
there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law.” Cohen v. United Am.
Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir. 1996) (quoting Fed.
R. Civ. P. 56(c)). If “the evidence is merely colorable” or “is not
significantly probative,” so that no reasonable jury could find in favor of the non-movant, summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). “When reviewing a grant of summary judgment, the court of appeals may
affirm if there exists any adequate ground for doing so, regardless
of whether it is the one on which the district court relied.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir. 1993) (citing, inter
alia, Davis v. Liberty Mut. Ins. Co., 525 F.2d 1204, 1207 (5th Cir.
1976)).
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What’s more, we have explained that “[s]ummary judgment
is a lethal weapon, and courts must be mindful of its aims and targets and beware of overkill in its use.” Edmondson v. Velvet Lifestyles,
LLC, 43 F.4th 1153, 1159 (11th Cir. 2022) (quoting Brunswick Corp.
v. Vineberg, 370 F.2d 605, 612 (5th Cir. 1967)). Most significantly, at
summary judgment, “the judge’s function is not himself to weigh
the evidence . . . but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. A genuine issue of material
fact would exist “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. at 248.
In making this determination, a reviewing court must examine the evidence “in the light most favorable to the opposing
party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (per curiam) (citation modified). Further, “the district court should resolve all reasonable doubts about the facts in favor of the non-movant, and
draw all justifiable inferences in his favor.” United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (citation modified). “If the record presents factual issues, the Court
must not decide them; it must deny the motion [for summary judgment] and proceed to trial.” Herzog v. Castle Rock Ent., 193 F.3d
1241, 1246 (11th Cir. 1999) (per curiam) (citation modified).
III.
A.
As a preliminary matter, USASF contends that the question
of distinctiveness was not properly before the district court, since
the matter was decided on the merits when Open Cheer agreed to
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dismiss the following affirmative defense with prejudice: “Plaintiff’s claims are barred, in whole or in part, because Plaintiff’s alleged marks are merely descriptive, lack secondary meaning,
and/or are generic.” Because the phrase “with prejudice” is synonymous with “on the merits,” Citibank, N.A. v. Data Lease Fin. Corp.,
904 F.2d 1498, 1501 (11th Cir. 1990), USASF reasons that the dismissal of this affirmative defense with prejudice operates as an adjudication of the marks’ distinctiveness on the merits.
USASF is mistaken. Our Court has never given preclusive
effect to the dismissal of an affirmative defense, so that no further
defense could be mounted on a prima facie element later in the
same case. USASF identifies no such holding, instead only offering
the unremarkable observation that a dismissal “with prejudice”
functions as an adjudication on the merits where preclusion is otherwise proper. Indeed, in nearly all of the cases USASF cites, preclusion applied because the claim or issue was raised in prior litigation, not in an earlier part of the same proceeding. See, e.g., Hart v.
Yamaha-Parts Distribs., Inc., 787 F.2d 1468, 1470 (11th Cir. 1986)
(holding that dismissal with prejudice of a prior negligent design
action barred claim for breach of warranty); Citibank, 904 F.2d at
1500–02 (same for preclusion following a prior settlement agreement).
Only one case in USASF’s briefing breaks this pattern. However, USASF’s spotlight of Federal Deposit Insurance Corp. v.
Loudermilk, 930 F.3d 1280 (11th Cir. 2019) further undermines its
position. In Loudermilk, the plaintiff moved for summary judgment
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on one of the defendants’ affirmative defenses, prompting that defense to be withdrawn. Id. at 1294. At trial, when the defendants
sought to introduce evidence related to the defense on the merits,
the plaintiff moved to exclude such evidence. Id. Although we
held that the district court did not abuse its discretion in granting
the plaintiff’s motion, our reasoning was clear: the district court did
so because of an earlier evidentiary ruling that the defendants had
not challenged. Id. at 1295. The panel in Loudermilk never condoned, directly or indirectly, the preclusion of evidence or argument on a prima facie element simply because an affirmative defense on the subject had been dismissed earlier.
To bar the review of a plaintiff’s prima facie case on these
facts would unduly stretch the boundaries of our precedent on preclusion, reaching even improperly pled affirmative defenses. Affirmative defenses “raise[ ] matters extraneous to the plaintiff’s
prima facie case; as such, they are derived from the common law
plea of ‘confession and avoidance.’” In re Rawson Food Serv., Inc.,
846 F.2d 1343, 1349 (11th Cir. 1988) (quoting 5 CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 1270 (1st ed. 1969)). So, “[a]n affirmative defense is one that, ‘if
established, requires judgment for the defendant even if the plaintiff can prove his case by a preponderance of the evidence.’” Grippa
v. Rubin, 133 F.4th 1186, 1196 (11th Cir. 2025) (quoting Wright v.
Southland Corp., 187 F.3d 1287, 1303 (11th Cir. 1999)).
“A defense which points out a defect in the plaintiff’s prima
facie case is not an affirmative defense.” In re Rawson, 846 F.2d at
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1349. Our Court has long recognized a clear distinction between
affirmative defenses of the kind enumerated in Federal Rule of
Civil Procedure 8(c) 1 and defenses to the merits of a prima facie
case. See, e.g., id.; Myers v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1224
(11th Cir. 2010). The distinction can have real consequences in litigation, since “[f]ailure to plead an affirmative defense generally results in a waiver” of that claim. Latimer v. Roaring Toyz, Inc., 601
F.3d 1224, 1239 (11th Cir. 2010). Defenses pled in this manner are
evaluated independently from the merits of a party’s prima facie
showing. Thus, for example, outside of the defenses enumerated
in Federal Rule 8(c), “[m]any kinds of immunity are routinely
pleaded as affirmative defenses.” Grippa, 133 F.4th at 1196 (citing
Moore v. Morgan, 922 F.2d 1553, 1557 (11th Cir. 1991)).
The defense at issue here is plainly not an affirmative defense. Open Cheer attempted to deny that USASF had established
the distinctiveness of its claimed marks. This denial is not a “matter[ ] extraneous to the plaintiff’s prima facie case,” In re Rawson,
846 F.2d at 1349, nor would it “require[ ] judgment for the
1 Federal Rule of Civil Procedure 8(c) reads in pertinent part:
In General: In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of
risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute
of limitations; and waiver.
FED. R. CIV. P. 8(c)(1) (citation modified).
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24-12653 Opinion of the Court 13
defendant even if [USASF] can prove [its] case,” Grippa, 133 F.4th
at 1196 (citation modified). Instead, it bears directly on the first
element that USASF must prove to obtain relief for a trademark
infringement claim. That the defense was dismissed with prejudice, then, should be unsurprising. It was never a proper affirmative defense to begin with, and no amendment by Open Cheer
would have cured it of that defect. See generally Crawford’s Auto Ctr.,
Inc. v. State Farm Mut. Auto. Ins. Co., 945 F.3d 1150, 1162–63 (11th
Cir. 2019).
We have previously condemned a “kitchen-sink approach to
pleading and affirmative defenses,” where a party asserts numerous
“affirmative defenses” that are functionally denials in disguise.
Loudermilk, 930 F.3d at 1295. This approach produces defenses that
are duplicative of an answer’s general denials and blurs the line between the litigants’ respective burdens of proof. But Open Cheer,
in apparent recognition of its error, agreed to the dismissal of the
offending defense. Open Cheer’s Answer also included a proper,
general denial of the distinctiveness of USASF’s marks. It reads this
way: “Defendants deny that Plaintiff’s alleged ‘WORLDS Trademarks’ are well-known and have acquired distinctiveness among
its membership and among the All Star cheer and dance community more broadly.” Thus, the issue remained very much alive
even after the affirmative defense had been dismissed.
“This Court has excused technical noncompliance with
pleading requirements where the substance of the pleading is sufficient.” Myers, 592 F.3d at 1225 (citation modified). Although Open
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Cheer’s affirmative defense was brought in error, the upshot of dismissing that defense does not vitiate the general denial Open Cheer
properly asserted elsewhere in its Answer, nor does the dismissal
function as a binding determination on the distinctiveness of the
marks. The dismissal was a correction of a technical mishap, bringing Open Cheer’s Answer in line with the appropriate pleading
standards for denials and affirmative defenses. The district court
did not err, therefore, in rejecting USASF’s estoppel argument, and
in allowing Open Cheer to present evidence on the issue of distinctiveness at summary judgment. On the parties’ agreement, the
court corrected the pleadings, and held USASF to the burden of
proving distinctiveness that had never left USASF’s shoulders.
B.
We turn to the merits. A trademark is “any word, name,
symbol, or device, or any combination thereof [used] to identify
and distinguish [one’s] goods . . . from those manufactured or sold
by others and to indicate the source of the goods.” Leigh v. Warner
Bros., Inc., 212 F.3d 1210, 1216 (11th Cir. 2000) (quoting 15 U.S.C.
§ 1127). In Section 32 of the Lanham Act, Congress created a cause
of action for infringement of a mark registered on either the Principal or Supplemental Registers. 15 U.S.C. § 1114(1)(a). Section 43,
moreover, supplies a cause of action for common law marks that
are used in interstate commerce. Id. § 1125(a). In either case, a
claimed mark must meet certain threshold showings.
Thus, “[a] plaintiff seeking to prevail on a trademark infringement claim must show 1) that he had a valid trademark and
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2) that the defendant had adopted an identical or similar mark such
that consumers were likely to confuse the two.” Gift of Learning
Found., Inc. v. TGC, Inc., 329 F.3d 792, 797 (11th Cir. 2003) (per curiam) (citing, inter alia, 15 U.S.C. § 1125(a)). A valid trademark is
“distinctive,” meaning it “identif[ies] the source of the goods or services,” not the goods or services themselves. Welding Servs., Inc. v.
Forman, 509 F.3d 1351, 1357 (11th Cir. 2007) (citing Colt Def. LLC v.
Bushmaster Firearms, Inc., 486 F.3d 701, 705 (1st Cir. 2007)).
“[A] mark can be ‘distinctive’ in one of two ways: It can be
‘inherently’ distinctive, or it can ‘acquire’ distinctiveness over
time.” Royal Palm Props., LLC v. Pink Palm Props., LLC, 950 F.3d 776,
782 (11th Cir. 2020) (citing Welding Servs., 509 F.3d at 1357). Inherently distinctive marks facially “identify the source of a particular
product or service[.]” Id. (citing Knights Armament Co. v. Optical Sys.
Tech., Inc., 654 F.3d 1179, 1188 (11th Cir. 2011)). Conversely, a
mark that has acquired distinctiveness “might initially have been
understood to describe a broad class of potential products or services, but over time it has taken on a ‘secondary meaning’ that links
it to a particular source.” Id. at 783 (citing Coach House Rest., Inc. v.
Coach & Six Rests., Inc., 934 F.2d 1551, 1559 (11th Cir. 1991)). “Because a valid mark need only have either inherent or acquired distinctiveness,” we would be required to reverse the district court’s
grant of summary judgment if a genuine dispute exists over
whether either of the marks, THE CHEERLEADING WORLDS
or WORLDS, are “distinctive in either respect.” Engineered Tax
Servs., Inc. v. Scarpello Consulting, Inc., 958 F.3d 1323, 1327 (11th Cir.
2020).
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Our law is clear that “the four categories of distinctiveness
in trademark law, listed in descending order of strength, are:
(1) fanciful or arbitrary; (2) suggestive; (3) descriptive; and (4) generic.” Knights Armament, 654 F.3d at 1188 (citing, inter alia, Welding Servs., 509 F.3d at 1357; Custom Mfg. & Eng’g Inc. v. Midway
Servs., Inc., 508 F.3d 641, 648 n.8 (11th Cir. 2007)). Although “[t]he
demarcation between each category is more blurred than it is definite,” over the years we have attempted to shade in the contours
of each category. Coach House Rest., 934 F.2d at 1559.
“[F]anciful marks (think ‘Verizon’ telecommunications -- the
name is a made-up word), arbitrary marks (think ‘Apple’ computers -- the name is a real word that has nothing to do with the product) and suggestive marks (think ‘Igloo’ coolers -- the name is a real
word that bears only an oblique relationship to the product)” are
all inherently distinctive. Royal Palm Props., 950 F.3d at 783. Because marks belonging to these categories are inherently distinctive, “no proof of secondary meaning is required for [them] to be
protectable.” Knights Armament, 654 F.3d at 1188 (quoting Coach
House Rest., 934 F.2d at 1560).
In contrast, “[a] ‘descriptive’ mark identifies a characteristic
or quality of the product,” id. (citing Welding Servs., 509 F.3d at
1358), and can “become protectible only if [it] ‘acquire[s]’ distinctiveness by obtaining a ‘secondary meaning’” as an identifier of a
product’s source in the minds of the consuming public. Royal Palm
Props., 950 F.3d at 783 (citation modified). Finally, at the bottom of
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the distinctiveness hierarchy, “generic marks . . . can never become
protectible.” Id. (citing Knights Armament, 654 F.3d at 1188).
A mark’s distinctiveness category is a question of fact. Welding Servs., 509 F.3d at 1357 (citing, inter alia, Investacorp, Inc. v. Arabian Inv. Banking Corp. (Investcorp) E.C., 931 F.2d 1519, 1523 (11th
Cir. 1991)). At summary judgment, USASF bears the burden to
make a prima facie showing that it possesses a valid, distinct trademark, since neither mark is registered on the PTO’s Principal Register. All agree that USASF’s marks are neither arbitrary nor fanciful. The marks would only be protectible, then, if they are suggestive, or are descriptive with secondary meaning. We conclude
that, at this preliminary stage, there is no genuine dispute of material fact over whether the marks are suggestive, but there remain
genuine disputes over whether the two marks are descriptive and
have obtained secondary meaning.
i.
First, WORLDS and THE CHEERLEADING WORLDS are
not suggestive. As noted, USASF bears the burden of producing
evidence from which a reasonable jury could find that its two
marks are suggestive. It has not done so.
Suggestive marks bear only an “oblique relationship to the
product” they reference. Royal Palm Props., 950 F.3d at 783. We
have traditionally employed two tests to determine whether a
mark is suggestive. The first is the so-called “imagination” test,
which asks whether a mark “requires a leap of the imagination to
get from the mark to the product.” Knights Armament, 654 F.3d at
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1188; see also Engineered Tax Servs., 958 F.3d at 1329. The second is
the third-party use test, which we have also called a test of thirdparty “need.” Engineered Tax Servs., 958 F.3d at 1331. It asks
“whether competitors would be likely to need the terms used in
the trademark in describing their products.” Id. (quoting Vision Ctr.
v. Opticks, Inc., 596 F.2d 111, 116 (5th Cir. 1979)). The two tests
“work in tandem to distinguish suggestive from descriptive
marks.” Id. at 1329.
In concluding that the two marks were not suggestive, the
district court relied primarily on the imagination test, reasoning
that no imaginative leap is required to cross from WORLDS or
THE CHEERLEADING WORLDS to an international cheerleading competition, since “[i]n combination, these words describe a
competition where [an] international group of athletes or teams
compete in cheerleading.”
We agree. Beginning with the simpler of the two marks,
WORLDS requires no leap of the imagination to connect its meaning to USASF’s product: an international competition. As defined,
“Worlds” is a well-worn stand-in for competition labels like
“World Competition” or “World Championship,” serving as shorthand for a global tournament. See world, n., Oxford English Dictionary, https://www.oed.com/dictionary/world_n (last visited
May 29, 2026) (defining “Worlds” as “[a] world championship or
competition”).2 The term is akin to other words that describe a
2 USASF takes issue with the use of dictionaries to discern a mark’s distinctiveness. It asserts that Open Cheer’s supplied dictionary definitions “were merely USCA11 Case: 24-12653 Document: 73-1 Date Filed: 06/24/2026 Page: 19 of 42
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geographic competition, such as “Regionals” or “Nationals,” which
in common parlance are readily evocative of a high-level event in
the relevant sport. See regional, adj. & n., Oxford English Dictionary, https://www.oed.com/dictionary/regional_adj (last visited
May 29, 2026) (defining “Regionals” as a “regional contest or competition”); national, adj. & n., Oxford English Dictionary,
https://www.oed.com/dictionary/national_adj (last visited May
29, 2026) (same for “Nationals”). Although USASF argues that
“Worlds” is not defined to mean “a world championship” in the
dictionaries cited by the district court, the fact that some dictionaries omit the relevant definition is not dispositive. See Sec. Ctr., Ltd.
v. First Nat’l Sec. Ctrs., 750 F.2d 1295, 1298 n.4 (5th Cir. 1985). And
in any event, authoritative dictionaries do define “Worlds” to mean
“[a] world championship or competition,” referring to its capitalized, plural form. World, n., Oxford English Dictionary,
https://www.oed.com/dictionary/world_n (last visited May 29,
2026).
quoted in an incomplete fashion in their Motion for Summary Judgment” and
“no request was made for the Court to take judicial notice of these definitions,
and they are not part of the record.” We are unpersuaded. “The dictionary
definition of [a] word is an appropriate and relevant indication ‘of the ordinary
significance and meaning of words’ to the public,” and may be used by a court
in the course of assessing a mark’s distinctiveness. Am. Heritage Life Ins. Co. v.
Heritage Life Ins. Co., 494 F.2d 3, 11 n.5 (5th Cir. 1974), abrogated on other
grounds, B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138 (2015); see also
Investacorp, 931 F.2d at 1523–24 (“Also probative of the descriptiveness of a
mark is the idea that is conveyed to the observer by the plain dictionary definition of the formatives comprising the mark.”).
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20 Opinion of the Court 24-12653
THE CHEERLEADING WORLDS fares no better. It is true
that in assessing the validity of a mark, “the whole can indeed be
greater than the sum of its parts.” Engineered Tax Servs., 958 F.3d at
1329 (citing Vision Ctr., 596 F.2d at 116). We have said that a court
must “analyze [a] mark holistically,” looking to the specific interplay between the words comprising the mark to discern whether it
is suggestive. Id.; see also USPTO v. Booking.com B.V., 591 U.S. 549,
556 (2020) (“[F]or a compound term, the distinctiveness inquiry
trains on the term’s meaning as a whole, not its parts in isolation.”).
That one part of the mark, “Worlds,” is not suggestive therefore
does not doom the joint phrase “The Cheerleading Worlds” to
mere descriptiveness.
Nevertheless, here the phrase “The Cheerleading Worlds,”
which adds “Cheerleading” as a modifier of “Worlds,” does little to
add to the imaginative labor required to connect the mark to
USASF’s product. USASF argues again that the phrase “The Cheerleading Worlds” is not listed in any dictionary, and thus does not
obviously mean “international cheerleading tournament.” But
how else would a consumer interpret the phrase? Although
“Worlds” does not precede “Cheerleading,” as one might expect
for an adjectival descriptor of a competition (e.g., “World Cheerleading Championship” or “World Cheerleading Competition”), a
hyper-literal interpretation of “Cheerleading Worlds” describes a
nonsensical product: multiple realms within which cheerleading
occurs or where cheerleaders otherwise reside, such as in “parallel
worlds.” See world, n., Oxford English Dictionary,
https://www.oed.com/dictionary/world_n (last visited May 29,
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2026) (defining “world” as “[t]he state or realm of human existence
on earth,” or “designating a world other than that of earth,” “[a]ny
state or realm of existence”); World, n., Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/world (last
visited May 29, 2026) (same).
More realistic readings are similarly foreclosed by the plural
form of “Worlds.” Thus, for example, if the phrase was “The
Cheerleading World” or “Cheerleading World,” one might analogize to the sport of cheerleading generally, as in “the academic
world,” see World, n., Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/world (last visited May 29, 2026) (alternatively defining “world” to mean “a distinctive class of persons or their sphere of interest or activity”), or
a nexus of goods connected to cheerleading, as in “Pet World,” a
store for pet-related products. But as it stands, the only reasonable,
unimaginative reading of “The Cheerleading Worlds” in this context is that of an international cheerleading competition, which is
precisely what USASF is intending to evoke.
In asserting that the marks are suggestive, USASF borrows
heavily from Engineered Tax Services v. Scarpello Consulting, Inc., 958
F.3d 1323 (11th Cir. 2020). There, we considered whether the mark
“Engineered Tax Services” was suggestive, after the district court
determined on summary judgment that it was not. Id. at 1327. As
here, the district court “supported its decision primarily with dictionary definitions of the mark’s constituent terms.” Id. at 1329.
On de novo review, we reversed, explaining that the district court
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22 Opinion of the Court 24-12653
“focused too narrowly on the individual meanings of individual
words,” and “considered only one sense of the word ‘engineer[ ],’
to the exclusion of other relevant meanings.” Id. USASF insists
that the district court’s analysis in this case was similarly deficient,
because it was overly reliant on the individual meanings of constituent terms.
USASF’s citation to Engineered Tax Services is unpersuasive,
since that case is factually and procedurally different. There, the
contested trademark was published on the Principal Register, entitling it to a presumption of validity that colored the Court’s analysis. Id. at 1328. Thus, the defendant bore a “double burden” of presenting evidence “so decisive that no reasonable jury could find”
that the phrase was inherently distinctive. Id. at 1328–29 (citation
modified). Of the two marks here, only one (THE
CHEERLEADING WORLDS) is registered on the Supplemental
Register, and even that would not entitle the mark to the same presumption. See 15 U.S.C. § 1094; George & Co. v. Imagination Entm’t
Ltd., 575 F.3d 383, 391 n.8 (4th Cir. 2009). WORLDS is not registered at all, and so it receives no presumption whatsoever. See MilMar Shoe Co., Inc. v. Shonac Corp., 75 F.3d 1153, 1156 (7th Cir. 1996).
Further, central to the Court’s conclusion in Engineered Tax
Services was its finding that “engineered” was subject to at least two
relevant interpretations. The panel observed that the word “engineered” had two similarly plausible readings, so that “when combined with the phrase ‘tax services’ to form the mark, ‘Engineered
Tax Services’ entail[ed] a clever double meaning, referring to tax
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24-12653 Opinion of the Court 23
services that are performed both (1) skillfully and scientifically and
(2) by actual engineers.” Engineered Tax Servs., 958 F.3d at 1330.
Moreover, “the fact that the undeniably descriptive term ‘tax services’ was modified by the adjective ‘engineered’ [was] particularly
significant because tax services aren’t the sort of thing that ordinarily calls for engineering.” Id. at 1329. The peculiar arrangement of
the mark’s terms was “more likely to require imagination than
would a more natural pairing of words.” Id.
Here, there is no analogous peculiarity, and no such exercise
of the imagination is required to navigate other plausible meanings. “Worlds” is an untethered geographic term that commonly
refers to global competitions of any variety. And “The Cheerleading Worlds” adds an expected modifier to this well-known use of
the noun “Worlds,” so that a consumer readily understands the
phrase to refer to an international cheerleading competition. The
composite mark is therefore comprised of “a more natural pairing
of words,” producing a “connection[ ] between product and mark”
that is “easy to draw.” Id. at 1329. Neither mark requires an imaginative leap to discern its referent, and thus the two marks lack the
key indicia of suggestiveness as a matter of law.
But there’s more. The second test, which the district court
did not address, looks to third-party need in describing similar
products. See Investacorp, 931 F.2d at 1523 (holding if a competitor
“need[s]” the mark, it is not distinctive of the mark holder’s own
product); see also Engineered Tax Servs., 958 F.3d at 1331. If a term
is crucial to describing other, analogous products, we are less likely
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24 Opinion of the Court 24-12653
to deem it suggestive. USASF argues that there are many other
ways to describe an international cheerleading competition that
don’t involve “Worlds” or “The Cheerleading Worlds.” It asserts
that ready synonyms exist, such as “international” or “global,” and
observes that Open Cheer has considered other competition names
that do not use “Worlds” at all.
We are unpersuaded. That other synonyms exist for a term
does not mean that the term is unneeded by third parties. For instance, “the word ‘vision’ is virtually indispensable to the vocabulary of the optical goods industry,” even though similar words such
as “eye, sight, and optics” also exist. Vision Ctr., 596 F.2d at 116.
Similarly, “World” or “Worlds” are terms integral to an international competition, and “The Cheerleading Worlds” is by extension integral to the concept of an international cheerleading competition. Open Cheer has supplied a plethora of other competitions
demonstrating as much, such as “Junior Cheerleading Worlds,”
“World Cheerleading Championships,” and “World Cup of Cheerleading.” USASF itself makes common use of “Worlds” in hosting
a different competition: “The Dance Worlds.” As a result, we cannot say that the marks are suggestive, since both are comprised of
terms central to naming analogous competitions.
ii.
Although the two marks are not suggestive, a reasonable
jury still could find that they are descriptive, and not -- as the district
court determined -- generic. “The distinction between descriptive
and generic terms is a matter of degree.” Gift of Learning, 329 F.3d
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24-12653 Opinion of the Court 25
at 798 (citing Am. Television & Commc’ns Corp. v. Am. Commc’ns &
Television, Inc., 810 F.2d 1546, 1548–49 (11th Cir. 1987)). A generic
term is usually “the name of a particular genus or class of which an
individual article or service is but a member.” Vision Ctr., 596 F.2d
at 115 3; Booking.com B.V., 591 U.S. at 556. Further, “a generic name
is the term by which the product or service itself is commonly
known.” Welding Servs., 509 F.3d at 1358 (citation modified) (citing
Nat’l Conf. of Bar Exam’rs v. Multistate Legal Stud., 692 F.2d 478, 487
(7th Cir. 1982)).
In the main, a generic term answers only the question
“What are you?” instead of “Who are you?” or “Where do you
come from?” 2 J. Thomas McCarthy, Trademarks and Unfair Competition, § 12.01 (5th ed. 2026). We have offered by way of example
that “milk delivery” is generic when used by a milk delivery service,
Investacorp, 931 F.2d at 1522, “liquor store” is generic “in connection with the sale of liquor,” Frehling Enters., Inc. v. Int’l Select Grp.,
Inc., 192 F.3d 1330, 1335 (11th Cir. 1999), and “book” is generic for
a book store, Royal Palm Props., 950 F.3d at 783. The throughline
of these examples is clear: where a mark does no more than “suggest[ ] the basic nature of the product or service,” it is generic. Gift
of Learning, 329 F.3d at 797; see also Coach House Rest., 934 F.2d at
1560 (citing Am. Television, 810 F.2d at 1548).
3 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions handed down by the
former Fifth Circuit before October 1, 1981. Id. at 1209.
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26 Opinion of the Court 24-12653
The test for whether a term is generic is “the primary significance of the [name] to the relevant public.” Miller’s Ale House, Inc.
v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1320 (11th Cir.
2012) (quoting 15 U.S.C. § 1064(3)). This inquiry is context-specific,
since “[g]enericness lies not in the term itself, but in the use of the
term.” Welding Servs., 509 F.3d at 1358. That is, “[a] word may be
generic of some things and not of others: ‘ivory’ is generic of elephant tusks but arbitrary as applied to soap.” Id. (quoting Soweco,
Inc. v. Shell Oil Co., 617 F.2d 1178, 1183 (5th Cir. 1980)). Because
“the relevant meaning of a term is its meaning to consumers,”
Booking.com B.V., 591 U.S. at 556, a court may look to “any competent source” of the public’s understanding of the term to determine
whether it is generic, such as “purchaser testimony, consumer surveys, listings in dictionaries, trade journals, newspapers, and other
publications,” In re Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828
F.2d 1567, 1570 (Fed. Cir. 1987).
While the correct classification of USASF’s two marks is a
difficult question, USASF’s evidence of non-generic use renders this
fact-bound issue entitled to a jury determination. As the district
court acknowledged, USASF has supplied substantial evidence
showing that event participants, the media, and other organizations in the domain of competitive cheerleading use “Worlds” and
“The Cheerleading Worlds” to refer to USASF’s annual event, and
not to international cheerleading events more broadly. This evidence includes USASF’s marketing materials and promotions, social media posts, Open Cheer’s own consistent references to the
event, testimony from parents of competitors, and news videos and
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24-12653 Opinion of the Court 27
article clippings demonstrating that media coverage of the event
uses the mark as a source-indicator.
Consider some examples. USASF has supplied social media
postings and testimony from event participants, including coaches
and cheerleading teams, using “Worlds” or “The Cheerleading
Worlds” to refer specifically to USASF’s event. One witness, Erin
Tyler, testified that when All Star competitors received invitations
to Open Cheer’s event, the cheerleaders and their parents were excited, because they mistakenly believed they had been invited to
USASF’s own event -- which Tyler repeatedly referred to as
“Worlds.” The record also includes at least ten articles written by
news publications from across the country, including papers and
stations in Idaho, Georgia, Pennsylvania, Wisconsin, California,
Virginia, Indiana, Maine, and Texas, all of which refer to USASF’s
event as either “Worlds” or “The Cheerleading Worlds.” Cheerleading-specific publications have likewise used the marks to refer
to USASF’s event, including in the 2022 edition of Inside Cheerleading magazine. And several of the Individual Appellees themselves
have referred to USASF’s event as “Worlds” or “Cheerleading
Worlds,” rather than using those terms in their generic capacity.
At summary judgment, this evidence is probative of the
marks being used in a non-generic fashion by the relevant consuming public, i.e., those who compete in All Stars cheerleading or
those who watch cheerleading events. And this body of evidence
could persuade a reasonable jury that the marks are descriptive.
See, e.g., PlayNation Play Sys., Inc. v. Velex Corp., 924 F.3d 1159, 1166 USCA11 Case: 24-12653 Document: 73-1 Date Filed: 06/24/2026 Page: 28 of 42
28 Opinion of the Court 24-12653
(11th Cir. 2019) (finding mark strengthened by plaintiff’s use, including “nationwide advertising and promotion”); Investacorp, 931
F.2d at 1523 (“To determine whether a term is descriptive, thirdparty usage by competitors is probative.” (citing Vision Ctr., 596
F.2d at 116)); Boston Duck Tours, LP v. Super Duck Tours, LLC, 531
F.3d 1, 18 (1st Cir. 2008) (looking to media articles, industry use,
and plaintiff’s use to determine whether “duck tours” was generic);
Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 141 (4th
Cir. 2001) (same for industry and media use). USASF has presented
enough evidence to take the question of whether the marks are descriptive to a jury. See Edmondson, 43 F.4th at 1159.
On the other side of the ledger, Open Cheer’s evidence is
not so conclusive that it forecloses any triable issue of fact as to
whether the two marks are generic. Open Cheer primarily relies
on dictionary definitions and analogous use by third-party competitors, who have hosted cheerleading events bearing similar names
to “Worlds” or “The Cheerleading Worlds.” To be sure, “use of a
term by competitors in the industry has traditionally been recognized, along with dictionary evidence, as indicating genericness.”
Mil-Mar Shoe Co., 75 F.3d at 1159 (citations omitted). But the ultimate touchstone of the genericness inquiry is how the relevant
consuming public understands the term. Booking.com B.V., 591 U.S.
at 557. Although dictionaries and competitor use may be probative
of how terms are commonly understood by relevant consumers,
USASF has presented evidence that controverts the plain dictionary meaning of “Worlds” and “Cheerleading,” showing that to parents, competitors, and the media, the marks are affiliated with
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24-12653 Opinion of the Court 29
USASF’s particular event. It is not for this Court to decide at summary judgment which bundle of evidence is more compelling; rather, it is for a jury to determine whether the specific evidence proffered by USASF is sufficient to overcome Open Cheer’s evidence.
The district court discounted the evidence of non-generic
use as to both of USASF’s marks, concluding that the evidence
“f[ell] short of creating a genuine dispute of material fact.” Basic to
this determination was the district court’s finding that “until Defendants began their allegedly infringing conduct, Plaintiff’s event
was the only season-ending world championship event in allstar
cheerleading,” meaning that “any public association between the
Contested Marks and Plaintiff’s event is the result of Plaintiff being
the sole source of this sort of event.” USASF insists that in so doing,
the court erred by improperly weighing the evidence at summary
judgment.
As we see it, the district court indeed erred, but not for the
reasons USASF offers. USASF is wrong to characterize the district
court’s analysis as weighing the evidence. A party bearing the burden of proof must supply “more than ‘[e]vidence that is merely colorable, or is not significantly probative’” to survive summary judgment, and so a reviewing court must look to the evidence supplied
to determine whether it is colorable and probative. Fernandez v.
Seaboard Marine Ltd., 135 F.4th 939, 947 (11th Cir. 2025) (quoting
Kernel Recs. Oy v. Mosley, 694 F.3d 1294, 1301 (11th Cir. 2012)). That
is exactly what the district court did here. It did not “make credibility determinations,” Wade v. McDade, 106 F.4th 1251, 1264 (11th
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30 Opinion of the Court 24-12653
Cir. 2024) (en banc) (Jordan, J., concurring), or “consider the relative strength of the parties’ evidence,” Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1303 (11th Cir. 2018). It instead
found that the body of evidence was per se irrelevant to the issue of
distinctiveness, based on its observation that USASF’s event was
the only one of its kind.
However, in discarding all of USASF’s evidence, we think
the court erred for at least two reasons. First, the record strongly
suggests that there were other season-ending competitions in All
Star cheerleading, including “the Summit,” held a week after
USASF’s Championship Week, with which Open Cheer claims its
own international event was meant to compete.
But second, and more fundamentally, discarding all of
USASF’s evidence was erroneous as a matter of law. None of the
cases cited by the district court held that evidence of non-generic
use ceases to become probative if there is only one relevant product on the market. Our Court has never adopted such a rule. Instead, the cases cited instruct only that where a term has already
been found to be generic, some evidence of non-generic use or secondary meaning will not suffice to afford it trademark protection.
See Welding Servs., 509 F.3d at 1358; A.J. Canfield Co. v. Honickman,
808 F.2d 291, 297 (3d Cir. 1986); Nat’l Conf. of Bar Exam’rs, 692 F.2d
at 487.
These cases do not permit a court to discard evidence in determining whether a term is generic in the first instance. Indeed,
as to one of the cases the district court cited, Surgicenters of America, USCA11 Case: 24-12653 Document: 73-1 Date Filed: 06/24/2026 Page: 31 of 42
24-12653 Opinion of the Court 31
Inc. v. Med. Dental Surgeries, Co., 601 F.2d 1011 (9th Cir. 1979), the
Ninth Circuit later clarified that its decision did not establish any
per se test for genericness, stressing that its holding was “based . . .
upon detailed information in some 45 exhibits that, taken collectively, suggested that the consuming public considered” the contested mark to be generic. Filipino Yellow Pages, Inc. v. Asian J.
Publ’ns, Inc., 198 F.3d 1143, 1148 (9th Cir. 1999); see also Surgicenters,
601 F.2d at 1017. And in Booking.com B.V., the Supreme Court rejected the notion that any per se rule or unbending legal standard
can render a mark generic, instead recounting the “bedrock principle” that the test of genericness is firmly rooted in evidence of consumer perception. 591 U.S. at 557–58, 560–61.
The district court’s obligation to consider evidence of nongeneric use was not obviated by USASF’s event being the first or
only one of its kind. Because it wholly discounted the evidence of
non-generic use, the court erred by not applying the appropriate
test of genericness. Had it considered all of the evidence, it would
conclude -- as we do here -- that a reasonable jury could find that
the marks are descriptive, since USASF’s evidence suggests that the
relevant consuming public associates the marks with USASF’s
event.
iii.
Just as a jury could find that the marks are descriptive, on
the body of evidence presented to the summary judgment court, a
jury could also find that the marks have acquired distinctiveness
through secondary meaning. For a mark holder to have a
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32 Opinion of the Court 24-12653
“protectable interest” in a descriptive mark, “[the mark] must have
attained secondary meaning before the date that [the alleged infringer] used the similar term.” Investacorp, 931 F.2d at 1524 (citing
Co-Rect Prods., Inc. v. Marvy! Advert. Photography, Inc., 780 F.2d 1324,
1330 (8th Cir. 1985)). In making this showing, a mark holder “has
the burden of sustaining a high degree of proof in establishing a
secondary meaning for a descriptive term.” Id. at 1525 (citing Vision Ctr., 596 F.2d at 119). The “requisite high degree of proof must
be considered by the court when ruling on a motion of summary
judgment.” Id. (citing Anderson, 477 U.S. at 242).
“A mark obtains a secondary meaning -- and therefore acquires distinctiveness -- when, in the minds of the relevant consuming public, the ‘primary significance of the term . . . is not the product but the producer.’” Royal Palm Props., 950 F.3d at 784 (footnote
omitted) (quoting Am. Television, 810 F.2d at 1549). Secondary
meaning can be demonstrated “through either direct evidence (like
consumer surveys) or circumstantial evidence.” Id. (citing Tartell
v. S. Fla. Sinus & Allergy Ctr., 790 F.3d 1253, 1257 (11th Cir. 2015)).
Where, as here, the mark holder has offered no consumer survey,
we typically look to the four so-called Conagra factors to determine
whether a mark has attained secondary meaning:
(1) [T]he length and manner of [the mark’s] use; (2)
the nature and extent of advertising and promotion;
(3) the efforts made by the [proprietor] to promote a
conscious connection in the public’s mind between
the [mark] and the [proprietor’s] product or business;
and (4) the extent to which the public actually
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24-12653 Opinion of the Court 33
identifies the [mark] with the [proprietor’s] product
or venture.
Id. at 785 (quoting Conagra, Inc. v. Singleton, 743 F.2d 1508, 1513
(11th Cir. 1984)). Because the district court held that no reasonable
jury could find USASF’s marks to be descriptive, it did not consider
whether they had attained secondary meaning. On review, we find
the evidence to be sufficient to raise a triable issue on that question.
As for the first Conagra factor, the two marks have referred
to USASF’s competition long before Open Cheer’s conflicting use.
USASF and its licensees “have engaged in substantially exclusive
and continuous use” of the marks since at least 2004, roughly 16
years before Allstar Worlds was created. USASF’s use of the marks
during this period was, on the evidence supplied, anything but passive. Contra Investacorp, 931 F.2d at 1525 (“[T]here is nothing significant about the manner of appellant’s use of the mark, other than
appellant merely ‘displayed its service mark on nearly all of its
transactional documents.’”). USASF has detailed its substantial advertising and promotional efforts, and for several years spent
roughly $150,000 annually to promote the event. Contra id. (“During this period, appellant’s advertising expenditures did not exceed
one-hundred dollars per month.”).
These expenditures have been manifested in a robust social
media presence, competition footage uploaded to YouTube, promotional videos, event fliers and competition packets, and
livestreaming of the event. In 2017 alone, the paid livestream of
USASF’s event garnered 301,595 unique page users, which
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34 Opinion of the Court 24-12653
increased to 403,615 in 2019. Similarly, USASF’s event has been
featured on ESPN and has been broadcasted to hundreds of thousands of viewers. USASF’s efforts demonstrate a concerted attempt
to promote a conscious connection between the marks and its
event, since USASF’s promotional materials make extensive use of
the contested marks in relation to Championship Week.
While “evidence of promotion efforts is not sufficient to establish a mark’s commercial strength” when viewed “in isolation,”
in this case USASF has offered evidence of more than just its efforts,
detailing consumer engagement with its event and the growth of
the event itself. Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830
F.3d 1242, 1259 (11th Cir. 2016) (citation modified); see also Aloe
Creme Labs., Inc. v. Milsan, Inc., 423 F.2d 845, 850 (5th Cir. 1970). In
fact, USASF’s cheerleading event has grown to host “more than 500
teams with more than 10,500 athletes, and another estimated
25,000 spectators each year,” up from the original 14 teams in 2004.
And finally, as already discussed, USASF has supplied testimony
from eventgoers and news articles from over the years, suggesting
that the relevant consuming public associates the two marks with
USASF’s specific event, rather than with other international cheerleading events.
Open Cheer claims that the evidence of secondary meaning
on the record is insufficient. In addition to offering a boilerplate
claim that the evidence is deficient, Open Cheer asserts that much
of the evidence supplied by USASF is either undated or dated only
after Allstar Worlds first emerged during the 2020–2021 season.
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Consequently, they insist this evidence fails to establish that secondary meaning for the marks was acquired before Open Cheer
began the contested use of a similar mark. To be sure, many of the
fliers, social media postings, and emails supplied by USASF are
dated during or after 2020. Others are not however, and preceded
the creation of Allstar Worlds. The relevant question is whether
the evidence supplied could persuade a reasonable jury that the
marks had acquired secondary meaning before the 2020-2021 season.
At this stage, a reviewing court must take the evidence supplied in a light most favorable to USASF, and draw all reasonable
inferences in its favor. Tolan, 572 U.S. at 656–57. Because much of
the evidence establishes substantial promotion and engagement
with USASF’s event bearing the contested marks prior to 2020,
USASF has supplied a sufficient body of evidence to survive summary judgment on this point. And beyond the body of evidence
that clearly precedes Allstar Worlds, the other evidence dated after
2020 may nevertheless be probative as to the culmination of efforts
taken by USASF to build the brand of its event in the years prior.
Finally, that some of the evidence is ambiguous as to its date also
suggests that the inquiry is fact-intensive in nature, requiring a deep
dive into the exhibits to discern which are more probative of the
public’s association with the marks during the relevant window. 4
4 Many of the cases cited by Open Cheer affirming a finding of no secondary
meaning were procedurally different from this case, since they reviewed findings made only following a bench trial. See, e.g., Fla. Int’l Univ. Bd. of Trustees, USCA11 Case: 24-12653 Document: 73-1 Date Filed: 06/24/2026 Page: 36 of 42
36 Opinion of the Court 24-12653
Open Cheer separately asserts that despite the record evidence, USASF cannot prove its marks had attained secondary
meaning, since USASF is not the sole organizer of Championship
Week. Open Cheer claims that because the two marks were used
by both USASF and IASF in connection with the event, the mark
never “identif[ied] and distinguish[ed] only a single commercial
source,” pointing to record evidence that bears both companies’
logos.
The case law Open Cheer relies on is inapposite. Here, the
facts do not involve a mark holder “knowing[ly] acquiesc[ing]” to
their competitors’ use of the mark, contra Sandshaker Lounge &
Package Store, LLC v. Quietwater Ent. Inc., 602 F. App’x 784, 788–89
(11th Cir. 2015) (per curiam); Campbell Soup Co. v. Armour & Co., 81
F. Supp. 114, 120 (E.D. Pa. 1948); a mark so nebulous that it cannot
be traced back to any particular source, contra Universal City Studios,
Inc. v. Nintendo Co., Ltd., 578 F. Supp. 911, 924 (S.D.N.Y. 1983); or
usage split between entities that bear no legal, contractual, or
agency relationship to one another, contra Black Hills Jewelry Mfg.
Co. v. LaBelle’s, 489 F. Supp. 754, 762 (D.S.D. 1980), aff’d, 633 F.2d
746 (8th Cir. 1980). In this case, the relationship between IASF and
USASF is well-established in the record. IASF was a business division of USASF until 2015, and now provides “input on minor issues
830 F.3d at 1251–52 (reviewing decision that was a summary judgment in
name, but a bench trial in practice, because the district court reviewed the
evidence as a trier of fact); Am. Television, 810 F.2d at 1547 (affirming no secondary meaning after bench trial); Aloe Creme Labs, 423 F.2d at 847 (same). USCA11 Case: 24-12653 Document: 73-1 Date Filed: 06/24/2026 Page: 37 of 42
24-12653 Opinion of the Court 37
in the international divisions of the WORLDS event.” IASF assists
in running the event, but has no role in handling awards, scoring,
or scheduling, and does not retain any proceeds. USASF’s representatives have testified that to the extent IASF uses the mark, it
does so under an implied license.
Moreover, nothing in the record suggests that the public is
confused about which event USASF’s marks refer to just because
IASF works with USASF. At most, Open Cheer might claim that
some eventgoers do not realize that USASF is the event’s primary
organizer. But this really doesn’t matter. “Secondary meaning is
the connection in the consumer’s mind between the mark and the
product’s producer, whether that producer is known or unknown.”
AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1535 n.14 (11th Cir. 1986).
USASF’s evidence that the relevant consuming public associates
the two marks with its particular event is probative of secondary
meaning, even if some materials also refer to a different licensee.
Since USASF has presented evidence sufficient to persuade a
reasonable jury that the marks have obtained secondary meaning,
there remains a genuine dispute of material fact as to whether the
marks are distinctive. Thus, the entry of summary judgment must
be reversed, so the factfinder may determine what protection, if
any, USASF’s marks are owed.
Similarly, the parties agree that the outcome of the trademark and civil conspiracy claims raised under Florida law follows
the same analysis as the federal claims, and so the claims rise or fall
together. See Suntree Techs., Inc. v. Ecosense Int’l, Inc., 693 F.3d 1338, USCA11 Case: 24-12653 Document: 73-1 Date Filed: 06/24/2026 Page: 38 of 42
38 Opinion of the Court 24-12653
1345 (11th Cir. 2012). Accordingly, because there is a genuine question of material fact as to the distinctiveness of USASF’s marks, the
entry of summary judgment for USASF’s state claims is likewise
reversed, and those claims are remanded to the district court for
determination by the factfinder.
C.
Open Cheer raises several other arguments in the alternative, claiming that even if the marks are distinctive, we ought to
affirm the judgment of the district court anyway. We have said
that a district court’s judgment may be affirmed “on any ground
supported by the record, regardless of whether that ground was
relied upon or even considered by the district court.” Kernel Recs.,
694 F.3d at 1309 (citing, inter alia, Krutzig v. Pulte Home Corp., 602
F.3d 1231, 1234 (11th Cir. 2010)). Nevertheless, neither of Open
Cheer’s proffered grounds is persuasive.
i.
First, Open Cheer says that the record evidence is insufficient to establish a likelihood of confusion between “Allstar
Worlds” and “The Cheerleading Worlds.” The district court did
not reach this issue, since it concluded that the marks were generic.
Because the district court did not consider the matter, we decline
to take it up on appeal.
We have said that where an inquiry is “necessarily case and
fact specific,” a reviewing court should take care in reaching the
matter without input from the district court or a competent factfinder. Guevara v. Republic of Peru, 468 F.3d 1289, 1306 (11th Cir.
USCA11 Case: 24-12653 Document: 73-1 Date Filed: 06/24/2026 Page: 39 of 42
24-12653 Opinion of the Court 39
2006). This principle finds its roots in the understanding that
“where the correctness of the lower court’s decision depends upon
a determination of fact . . . , the appellate court cannot take the
place of the jury.” SEC v. Chenery Corp., 318 U.S. 80, 88 (1943); see
also Stewart v. Dep’t of Health and Human Servs., 26 F.3d 115, 115–16
(11th Cir. 1994). While this principle of restraint is “not a jurisdictional limitation,” it is predicated on the pragmatic consideration
that fact-intensive questions are better left for initial determination
by the factfinder. Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1372
n.5 (11th Cir. 1998) (quoting Ochran v. United States, 117 F.3d 495,
502 (11th Cir. 1997)).
A mark’s likelihood of confusion is generally too case- and
fact-specific to take up on a cold record. If the validity of a plaintiff’s
mark is established, the question becomes whether there is “a likelihood of confusion in the mind[s] of an appreciable number of reasonably prudent buyers.” John H. Harland Co. v. Clarke Checks, Inc.,
711 F.2d 966, 979 n.22 (11th Cir. 1983) (citation modified). To succeed, a mark holder must demonstrate that “the defendant’s actual
practice is likely to produce confusion in the minds of consumers
about the origin of the goods or services in question.” KP Permanent
Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 117 (2004).
We have employed seven fact-intensive factors to analyze the likelihood of confusion: (1) the strength of the plaintiff’s mark; (2) the
similarity of the marks; (3) the similarity of the products; (4) the
similarity of the parties’ trade channels and customers; (5) the similarity of advertising media used by the parties; (6) the defendant’s
intent; and (7) the existence and extent of actual confusion in the
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40 Opinion of the Court 24-12653
consuming public. Fla. Int’l Univ. Bd. of Trs., 830 F.3d at 1255. The
first and last factors are the most important, see id., but all must be
considered, Dippin’ Dots, Inc. v. Frosty Bites Distrib., LLC, 369 F.3d
1197, 1207 (11th Cir. 2004).
Whether a likelihood of confusion exists is a question of fact.
Welding Servs., 509 F.3d at 1361 (citing Jellibeans, Inc. v. Skating Clubs
of Ga., Inc., 716 F.2d 833, 840 n.16 (11th Cir. 1983)). Although we
have said that the issue “may be decided as a matter of law,” Tana
v. Dantanna’s, 611 F.3d 767, 775 n.7 (11th Cir. 2010), such review
has usually occurred after the district court or jury has considered
the evidence. See, e.g., Welding Servs., 509 F.3d at 1361 (affirming
finding of no likelihood of confusion on summary judgment); Custom Mfg., 508 F.3d at 649 (same); Tana, 611 F.3d at 775 (same). Indeed, we have traditionally remanded where a district court did not
properly consider whether a mark is likely to cause confusion. See
J-B Weld Co., LLC v. Gorilla Glue Co., 978 F.3d 778, 795 (11th Cir.
2020) (reversing and remanding for trial the district court’s finding
of no confusion, since the district court failed to consider several of
the seven relevant factors); Frostie Co. v. Dr. Pepper Co., 341 F.2d 363,
367 (5th Cir. 1965). We do so again today, since it is wiser to permit
the district court to issue a finding of fact it is better situated to
make.
ii.
Open Cheer also claims that even if we find the evidence
sufficient to take the marks’ distinctiveness to a jury, we may affirm
at least as to the Individual Appellees, who did not intentionally
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24-12653 Opinion of the Court 41
misappropriate USASF’s marks. Open Cheer claims that “[i]ndividual owners are only personally liable for an entity’s infringement if
they ‘actively and knowingly caused the infringement,’” and because USASF has not introduced evidence that the non-corporate
organizers of Allstar Worlds themselves participated in the infringement, any claims against the Individual Appellees should be
dismissed.
We have long held that natural persons may be personally
liable for trademark infringement wherever they knowingly and
substantially participate in the infringement. See, e.g., Edmondson,
43 F.4th at 1163–64 (“Because corporations are run by individuals,
‘[n]atural persons, as well as corporations, may be liable for trademark infringement under the Lanham Act.’” (quoting Chanel, Inc.
v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.
1991))); Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161, 1184 (11th
Cir. 1994) (per curiam). Further, we have instructed that a “corporate officer who directs, controls, ratifies, participates in, or is the
moving force behind the infringing activity, is personally liable for
such infringement without regard to piercing of the corporate
veil.” Babbit Elecs., 38 F.3d at 1184 (citing Selchow & Righter Co. v.
Goldex Corp., 612 F. Supp. 19 (S.D. Fla. 1985)).
The Individual Appellees are “former members of USASF”
and are the sole owners of the Open Cheer Entities that organize
Allstar Worlds and use the allegedly infringing mark. USASF
points to record evidence that the Individual Appellees “substantially participated in the infringement,” in that they all discussed
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42 Opinion of the Court 24-12653
and participated in the selection of the name for their competition,
and facilitated the infringing conduct by organizing and promoting
the event. The record evidence also suggests that any alleged infringement was done knowingly, since the Individual Appellees
acknowledged USASF’s trademarks and surmised that USASF may
have a problem with the name of Allstar Worlds. Open Cheer
points to no evidence to the contrary. See Babbit Elecs., 38 F.3d at
1184.
Moreover, as the sole owners and operators of the entities
behind Allstar Worlds, it is unclear how the Individual Appellees
would not be involved in the marks’ usage, and USASF need not
pierce the corporate veil to hold the Individual Appellees responsible for their entities’ actions. See id. A reasonable jury could find
on the evidence supplied that the Individual Appellees were personally and substantially involved in the claimed violation. See
Mead Johnson & Co. v. Baby’s Formula Serv., Inc., 402 F.2d 23, 23 (5th
Cir. 1968). Once more, we remand the matter for a jury to decide.
REVERSED AND REMANDED.