"VINDEX" is not registered as a trademark for PVC fences. The court found that "VINDEX" is well known to the average consumer "as a distinguishing mark" for PVC fences. Thus, the court found that the mark had obtained trademark protection. The court emphasized that Vindex had used the mark consistently for all its products, and that the use had resulted in a distinct goodwill connected to the mark. The court stated that when the average consumer rarely purchases the relevant product or service, the threshold for finding a mark to be well known to the average consumer "as a distinguishing mark for the relevant goods" decreases.
In its assessment, the court referred to a market survey showing that only 9% of the respondents had heard about Vindex, and out of these only 2% associated "VINDEX" with fences or rails. Consequently, trademark protection can be established by use although only a few respondents in a market survey have heard about the mark. However, the court was in doubt and we still recommend registration, as registration provides national protection and predictability. Trademarks established by use may obtain limited local protection, and whether a trademark has established such protection is often uncertain.