See Holy Spirit Ass'n for Unification of World Christianity v. World Peace & Unification Sanctuary, Inc., No. 3:18-cv-01508, 2019 WL 3297469, at *7 (M.D. Pa. July 22, 2019) (alteration in original) (quoting A.J. Canfield Co. v. Honickman, 808 F.2d 291, 296 (3d Cir. 1986)). “[A] generic term is essentially the common name for an article.” Zurco, Inc. v. Sloan Valve Co., 785 F.Supp.2d 476, 488 (W.D. Pa. 2011). “To give an example, ‘Cola' is generic because it refers to a product, whereas ‘Pepsi Cola' is not generic because it refers to the producer.

A suggestive mark "suggests rather than describes the product or source of the goods by conveying indirect or vague information about the product or service." Zurco, Inc. v. Sloan Valve Co., 785 F.Supp.2d 476, 490 (W.D. Pa. 2011)(internal quotations omitted). The difference between suggestive and descriptive marks is often "distinguished 'on an intuitive basis rather than as the result of a logical analysis susceptible of articulation.'"

Am. Auto. Ass'n of N. Cal., Nev. & Utah v. Gen. Motors LLC, 367 F. Supp. 3d 1072, 1105 (N.D. Cal. 2019) (quoting Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993)). Zurco, Inc. v. Sloan Valve Co., 785 F. Supp. 2d 476, 500-01 (W.D. Pa. 2011) (quoting Web Printing Controls Co., Inc. v. Oxy-Dry Corp., 906 F.2d 1202, 1204-05 (7th Cir. 1990)). 2. Disgorgement of Infringer's Profits and Treble Damages

At this point in the proceedings, this Court cannot delve into the issue of whether the SWITCH SOCK mark is merely descriptive as such a level-of-distinctiveness determination is a question of fact that is beyond the Rule 12(b) level of review. See In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1344 (Fed.Cir. 2001) ("Placement of a term on the fanciful-suggestive-descriptive-generic continuum is a question of fact."); Zurco, Inc. v. Sloan Valve Co., 785 F. Supp. 2d 476, 488 (W.D. Pa. 2011) ("categorization of a mark as generic, descriptive, or otherwise is usually a factual issue for the jury."); 2 McCarthy on Trademarks and Unfair Competition, § 12:12 n.3 (5th ed. 2017) citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed.Cir. 2007) (reversing dismissal of a Fed.R.Civ.P. 12(b)(6) motion where district court held the alleged mark to be a generic name).

" ‘The doctrine of acquiescence applies when the trademark owner, by affirmative word or deed, conveys its implied consent to another’ to use its name or mark." Zurco, Inc. v. Sloan Valve Co., 785 F.Supp.2d 476, 501 (W.D.Pa.2011), quoting Pappan Enterprises, Inc. v. Hardee's Food Systems, Inc., 143 F.3d 800, 804 (3rd Cir.1998). There is no indication here that Covertech impliedly consented to TVM's use of its mark.

However, a party arguing for abandonment has a high burden of proof because abandonment, being in the nature of a forfeiture, must be strictly proved. Zurco, Inc. v. Sloan Valve Comp., 785 F.Supp.2d 476, 492 (W.D. Pa. 2011) (citing Doebler's Pennsylvania Hybrids, Inc. v. Doebler, 442 F.3d 812, 822 (3d Cir. 2006) and U.S. Jaycees, 639 F.2d at 139). A "failure to police" one's marks is one type of owner conduct that is commonly assumed to inevitably result in abandonment.

Many courts have recognized a four-category "scale of distinctiveness" that separates terms into the following categories: (1) arbitrary or fanciful, (2) suggestive, (3) descriptive, and (4) generic. See e.g., Carnivale, supra (citing Abercrombie Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir. 1976); E.T. Browne Drug Co. v. Cococare Products, Inc., 538 F.3d 185, 191 (3d Cir. 2008);A.J. Canfield Co. v. Honickman, 808 F.2d 291, 296 (3d Cir. 1986); and Zurco Inc. v. Sloan Valve Co., 2011 WL 1230154, *4-5 (W.D.Pa. decided March 31, 2011). As the United States Court of Appeals for the Third Circuit has explained: