Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW CARL O. BUE, Jr., District Judge. Introduction Plaintiffs, King-Size, Inc. and King-Size Knapp, Inc. of Texas (unless otherwise indicated, hereinafter King-Size), brought this action for trademark and service mark infringement of federally registered marks pursuant to Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1) (1963), false designation of origin pursuant to Section 43a of the Lanham Act, 15 U.S.C. § 1125(a) (1982), and unfair competition under principles of Texas common law, against defendants Frank W. Winker, Frank’s King Size Clothes, Inc., and Frank’s King Size Clothes of Austin, Inc. Defendants have counterclaimed against plaintiffs for cancellation of plaintiffs’ federal trademark and service mark registrations alleging that the registrations were fraudulently procured, and in addition, that the alleged marks are not distinctive of plaintiffs’ goods and services. Defendants seek also damages for the assertion of these fraudulently obtained registrations. Finally, defendants counterclaim for cancellation of plaintiffs’ state trademark registration. The cause was tried to the Court sitting without a jury. At the conclusion of the evidence, the Court requested additional briefing by the parties and took the case under advisement. Pursuant to Rule 52(a), Fed.R.Civ.P., the Court hereby enters the following Findings of Fact and Conclusions of Law detailing the reasons for its decision that plaintiffs have failed to sustain their burden of proving that defendants infringed plaintiffs’ mark, that defendants had falsely designated the origin of their goods in violation of 15 U.S.C. § 1125(a), or that defendants had engaged in unfair competition under the principles of Texas common law, and that as a consequence thereof, defendants should prevail. The following Findings of Fact and Conclusions of Law reflect also the Court’s conclusions that as plaintiffs’ trademark and service mark registrations were not fraudulently obtained, and as plaintiffs’ mark is not a common descriptive name of an article or substance, defendants’ claim for cancellation of plaintiffs’ federal registrations must be denied. The Court concludes further, however, that under existing Texas law plaintiffs’ state trademark registration must be cancelled. Findings of Fact 1. Plaintiff King-Size, Inc., is a Massachusetts corporation with its principal place of business in Brockton, Massachusetts. Admission of Fact. 2. Plaintiff King-Size Knapp, Inc. of Texas is a Texas corporation with a place of business in Houston, Harris County, Texas. Admission of Fact. 3. Defendant Frank W. Winker is a resident of Arlington, Texas. Admission of Fact. 4. Defendant Frank’s King Size Clothes, Inc., is a Texas corporation with its principal place of business in Dallas, Texas. Admission of Fact. 5. Defendant Frank’s King Size Clothes of Austin, Inc., is a Texas corporation with its principal place of business in Dallas, Texas. Admission of Fact. 6. On November 30, 1946, plaintiff King-Size’s predecessor in title was incorporated to do business in the State of Massachusetts. The business for which the company was to be engaged included “[t]he manufacture and sale of wearing apparel, and, the sale and purchase of real estate necessary thereto.” Plaintiffs’ Exhibit 1. See also Testimony of James Kelley; Plaintiffs’ Exhibit 26; Defendants’ Exhibit 74. 7. In 1947, King-Size’s predecessor in title began using the name king size in the United States in connection with the marketing of men’s shoes for large size feet through mail order catalogs. Testimony of James Kelley; Plaintiffs’ Exhibit 26; Defendants’ Exhibit 74. 8. Due to customer demand, King-Size’s predecessor in title entered into the wearing apparel business in 1948 when it began marketing a line of outsize hosiery. Plaintiffs’ Exhibit 26; Defendants’ Exhibit 74. 9. By 1950, the mail order operations of the company had expanded to the point that the company had set aside $25,000 for advertising. The company’s advertising at that time consisted of the placement of advertisements in newspapers and magazines, in addition to a direct mail program. Plaintiffs’ Exhibit 26; Defendants’ Exhibit 74. 10. On September 20,1967, the Board of Directors of Knapp Brothers Shoes Manufacturing Corporation (hereinafter Knapp Shoes), unanimously authorized a merger of King-Size’s predecessor in title, King-Size, Inc., a wholly-owned subsidiary of Knapp Shoes, into the parent company Knapp Shoes. The directors unanimously authorized also a plan which established upon consummation of the merger heretofore discussed, a division of Knapp Shoes known as “The King-Size Co.” Plaintiffs’ Exhibit 2. 11. On October 27, 1967, the President of King-Size’s predecessor in title, Manuel Alter, authorized the use of the corporate name “King-Size, Inc.” by a company named “King-Size, Inc.” that had not yet been created. Plaintiffs’ Exhibit 3. 12. On October 31, 1967, King-Size, Inc., executed and filed its Articles of Organization with the Secretary of the Commonwealth of Massachusetts. As described in its Article of Organization, King-Size, Inc. was formed for the following purposes: To manufacture, buy, sell and deal, at wholesale, at retail, and by mail order, in clothing, headwear, footwear, gloves and wearing apparel and accessories of any and every kind, whether ready or custom made, for men, women and children; and generally to carry on the business of sellers of men’s, women’s and children’s clothing apparel and accessories. Plaintiffs’ Exhibit 4. Such Articles of Organization were approved by the Secretary of the Commonwealth on the same day. Plaintiffs’ Exhibit 4. 13. On March 27, 1967, the Articles of Incorporation of Knapp Brothers Shoes-Texas, Inc. were filed with the Secretary of State of the State of Texas. Plaintiffs’ Exhibit 7. Following the receipt of the Articles of Incorporation and a finding that such articles conformed to law, the Secretary of State executed a Certificate of Incorporation of Knapp Brothers Shoes-Texas, Inc. Plaintiffs’ Exhibit 7. Knapp Brothers Shoes-Texas, Inc. later changed its name to King-Size Knapp, Inc. of Texas. Plaintiffs’ Exhibit 8. 14. On October 31, 1967, the Articles of Merger of Knapp Shoes and the former King-Size, Inc. were filed also with the Secretary of the Commonwealth of Massachusetts. Plaintiffs’ Exhibit 5. The effective date of the merger, as stated in the Articles of Merger, was the close of business on October 31,1967. Plaintiffs’ Exhibit 5. Such Articles of Merger were approved by the Secretary of the Commonwealth on the same day. Plaintiffs’ Exhibit 5. 15. On June 29, 1970, the President of Knapp King-Size Corp. executed an agreement transferring to King-Size, Inc., the assets of its King-Size Division, as well as “all claims and rights under contracts, the right to use the name ‘King Size’, or any variant thereof, any and all trademarks, trade names ..., all as the same presently exist.... ” Plaintiffs’ Exhibit 6. 16. On July 1, 1976, King-Size executed an agreement providing its wholly owned subsidiary, Knapp King-Size Corp., with the “right and license to use, and to grant sublicenses thereunder, the trademark and service mark ‘King-Size’, ... in connection with offering for sale and the selling of wearing apparel, shoes and clothing for big and tall men.” Plaintiffs’ Exhibit 9. 17. Subsequently, Knapp King-Size Corp. executed a sublicense agreement with a related company, King-Size Knapp, Inc. of Texas, Plaintiffs’ Exhibit 10, whereby King-Size Knapp, Inc. of Texas acquired the “right and license to use the trademark and service mark ‘King-Size’, ... in connection with the offering for sale and the sale of wearing apparel, shoes and clothing for big and tall men.” Plaintiffs’ Exhibit 10. 18. Prior to 1968, King-Size’s principal merchandising method was the utilization of mail order catalogs. Approximately 98% of King-Size’s business was conducted through mail order catalogs, while the remainder of its sales were made in its outlet store. Testimony of James Kelley. 19. In 1968, King-Size entered the retail market by opening its first retail store in Boston, Massachusetts. At the present time, King Size has 22 retail stores located in major cities throughout the United States, e.g., Chicago, Philadelphia, Houston, Baltimore, Washington D. C., Boston, St. Louis and Pittsburgh. Its retail stores are located mainly in the East and Midwest. It also sells its merchandise in several large department stores. Presently, its retail stores contribute approximately 40% of the total sales made by King-Size. Testimony of James Kelley. 20. The heart of King-Size’s mail order business is its customer lists. Names on these lists are obtained through potential customer inquiries as a result of King-Size’s national advertising. Testimony of James Kelley. At the present time, approximately 600,000 persons residing in the United States, Canada and Europe are on plaintiffs’ customer lists. 21. King-Size’s business is dependent upon repeat business. Approximately 80%-90% of King-Size’s customers are repeat customers. On the average, King-Size’s customers buy merchandise from it 1.8 times a year. Testimony of James Kelley. 22. King-Size has a retail store located in the southwestern section of Houston. Testimony of James Kelley; Plaintiffs’ Exhibits 23, 24, 70. Approximately 70% of the Houston store’s customers reside within a ten mile radius of the store. Testimony of James Kelley. King-Size does not presently have a retail store in Dallas, Texas. Testimony of James Kelley. 23. Plaintiffs have been using the words “king size” in their names for thirty-five years in connection with their business of selling shoes and wearing apparel to larger than normal size men. Testimony of James Kelley; Plaintiffs’ Exhibits 1, 26-28. See Finding 1. The words “king size” are the most prominent feature of plaintiffs’ corporate names. Plaintiffs’ Exhibits 22-24, 27-32. Their corporate names appear on such items as company stationery, mail order and retail store sales slips, clothing bags, packing boxes, advertising, and mail order catalogs. Plaintiffs’ Exhibits 27-32. 24. Since at least 1959, King-Size has vigorously attempted to stop the use by other companies of the term “king size” in connection with the large men’s clothing and shoe business. Plaintiffs’ Exhibits 34, 35, 38-42, 49; Defendants’ Exhibits 4-17, 28, 45-54, 56-74,113. When it is discovered that a company is using the words “king size” in connection with the sale of large men’s clothing or shoes, a copy of the advertisement, if any, is obtained by one of King-Size’s employees and forwarded to King-Size’s legal counsel. King-Size’s counsel sends then a letter to the alleged infringer notifying the alleged infringer of plaintiffs’ claim to the mark “king size”, and requesting that the alleged infringer cease and desist the use of “king size” or face legal action. Testimony of James Kelley; Plaintiffs’ Exhibits 34, 35, 49. On several occasions, plaintiffs have filed suit against third parties which failed to cease using the term “king size” in connection with the sale of large men’s wearing apparel. Testimony of James Kelley; Plaintiffs’ Exhibits 38-42; Defendants’ Exhibits 28, 113. 25. Frank W. Winker and Frank’s King Size Clothes, Inc. (hereinafter Frank) first started using the words “king size” in the large men’s clothing business in October, 1971 when Frank opened a retail clothing store in Dallas, Texas. Testimony of Frank Winker; Defendants’ Exhibit 17, 77. Shortly thereafter, Frank opened additional retail clothing stores in Austin, Arlington, Lubbock, and Houston, Texas. Testimony of Frank Winker; Plaintiffs’ Exhibits 56, 61, 62. A store which Frank had opened in Fort Worth has now since closed. Testimony of Frank Winker. 26. Defendants use presently the term “king size” in their company name; such name appears on its store signs, company stationery, clothing labels and in its advertisements. Testimony of Frank Winker; Plaintiffs’ Exhibits 58, 63; Defendants’ Exhibits 75, 76. The words “king size” in defendants’ names appearing on such items, however, are not as prominent as the name “Frank’s”. Testimony of Frank Winker; Plaintiffs’ Exhibits 25, 58, 63; Defendants’ Exhibits 75, 76. 27. Defendants adopted the term “king size” for use in their corporate names and in connection with their business of selling wearing apparel for large size men in the belief that the term was a descriptive term used in the large size men wearing apparel industry and that no one was entitled to the exclusive right to use the term “king size” either as a corporate name or mark. Testimony of Frank Winker. In using the term “king size” in their corporate name and in connection with the sale of wearing apparel for large size men, it was not defendants’ intent to trade off of King-Size’s business, good will or reputation. Testimony of Frank Winker. 28. King-Size is the owner of Registration No. 931,531 for the service mark “king size” for use in connection with the mail order and retail store services relative to men’s shoes and wearing apparel. This mark was registered on the Principal Register of the United States Patent and Trademark Office on March 28, 1972. Defendants’ Exhibit 1. This registration states a “first use” of “in or before 1947”. Defendants’ Exhibit 1. This registration has not become incontestable. Admission of Fact. King-Size is the owner also of Registration No. 977,344 for the trademark “king size” for use in connection with men’s shoes and wearing apparel. This mark was registered on the principal register of the United States Patent and Trademark Office on January 24, 1974. Defendants’ Exhibit 2. This registration states a “first use” of “in or about 1947”. Defendants’ Exhibit 2. This registration also has not become incontestable. Admission of Fact. 29. In June and in September, 1971, King-Size’s president, James Kelley, signed statements contained within King-Size’s service mark and trademark registration applications setting forth his belief that King-Size was the “owner of the mark sought to be registered; that to the best of his knowledge and belief no other person, firm, [or] corporation . .. has the right to use said mark in commerce . . . when applied to goods of such other person. . . . ” Defendants’ Exhibits 1, 2. Kelley testified during the trial of this cause that such belief was based upon the continuous use of “king size” by plaintiffs for twenty-five years. Kelley testified further that his belief that King-Size possessed the exclusive right to use the term “king size” was premised also on a judgment entered in King-Size’s favor in the United States District Court for the District of Colorado. Testimony of James Kelley. The suit, styled Knapp Brothers Shoes Manufacturing Corp. v. Gate’s King-Size Clothing, Inc., was commenced by Knapp Shoes, King-Size’s predecessor in title, Refer to Findings 10-17, against Gate’s King-Size Clothing, Inc. (hereinafter Gates), apparently on the basis of allegations of trademark infringement. Plaintiffs’ Exhibits 38, 42; Defendants’ Exhibits 1, 2. As a result of its finding that Knapp Shoe’s had acquired a secondary meaning in the designation “king size” in a trademark and trade name sense, the district court ordered the following: 1. That the Defendant shall not in any way pass off its merchandise as that of the Plaintiff, nor trade on the Plaintiff’s good will in any manner. 2. That the Defendant shall be and hereby is enjoined from any display or publication of its name in a manner which would have any tenancy [sic] to create the impression on the public mind that the Defendant is in any way affiliated with the Plaintiff. 3. That the Defendant shall be and hereby is enjoined from any advertising; including but not limited to such advertising set forth in the telephone book yellow pages, newspapers, magazines, bulletins, flyers or catalogs; using the name Gate’s King-Size Clothing without displaying in close proximity thereto and in relatively prominent fashion the statement; ‘Not the King-Size Company of Brockton, Massachusetts.’ Plaintiffs’ Exhibit 42; Defendants’ Exhibits 1, 2. See also Testimony of James Kelley. 30. King-Size is the owner of a Texas Certificate of Registration for the mark “king size” for use in connection with the business of selling wearing apparel and shoes for large size men in Texas. Defendants’ Exhibit 3. 31. Frank’s King Size Clothes, Inc. and Frank’s King Size Clothes of Austin, Inc. were incorporated using the words “king size” in their corporate names and in connection with their business of selling wearing apparel for large size men prior to the issuance of King-Size’s federal and state registrations. Admission of Fact. 32. Since 1947, King-Size has had considerable success with its sale of shoes and wearing apparel to large size men. Its sales have grown steadily from approximately $15,300 in 1947 to approximately $23,243,500 in 1977. During this time, King-Size has increased its advertising budget from approximately $5,300 in 1947 to approximately $875,500 in 1977. Testimony of James Kelley; Plaintiffs’ Exhibit 14. In 1981, King-Size’s advertising expenses were expected to total approximately $970,000, with catalog expenses and postage expenses totalling $2,400,000. Testimony of James Kelley. 33. King-Size and its predecessor in title have advertised nationally since 1947. King-Size’s promotional activities have consisted of the placement of advertisements in magazines with nationwide circulations, e.g., Better Homes and Gardens, Popular Mechanics, Esquire, Redbook, Family Circle, Testimony of James Kelley; Plaintiffs’ Exhibits 19, 21, 22, 28, 32, 66, 67, major city newspapers, e.g., Chicago Tribune, Dallas News, Houston Post, Houston Chronicle, Los Angeles Times, Pittsburgh Press, Testimony of James Kelley; Plaintiffs’ Exhibits 20, 23, 24, 28, 66, 67, and the yellow pages of phone books of large metropolitan cities. Testimony of James Kelley; Plaintiffs’ Exhibit 44. In samples of these ads entered into evidence, “king size” is displayed in a prominent fashion. Plaintiffs’ Exhibits 22-24, 28, 32, 44. Plaintiffs have advertised also on television and radio. Plaintiffs’ Exhibits 66, 67. In addition to the above, King-Size utilizes a nationwide mail order program to promote its products. Testimony of James Kelley; Plaintiffs’ Exhibits 14, 16, 18, 29-31, 66; Defendants’ Exhibits 25, 27, 96, 97. King-Size mails catalogs to its customers and potential customers 10 times a year. Testimony of James Kelley. Since 1967, plaintiffs have mailed from 3,802,083 to 8,718,337 catalogs a year in which the mark “king size” appear prominently in plaintiffs’ names. Plaintiffs’ Exhibits 18, 29-31; Defendants’ Exhibits 25, 27, 96, 97. 34. Defendants’ advertising consists of the placement of advertisements in newspapers, e.g., Houston Post, Houston Chronicle, Dallas News, and the yellow pages of telephone books in the cities where it has stores. Testimony of Frank Winker; Plaintiffs’ Exhibits 25, 58, 63; Defendants’ Exhibits 55, 75. The words “king size” are included in defendants’ names appearing in these advertisements. Plaintiffs’ Exhibits 25, 63; Defendants’ Exhibit 75. Defendants have advertised also on television and radio in Lubbock, Texas. Testimony of Frank Winker. 35. King-Size’s customers can be classified demographically into four groups: (1) those men under six feet tall; men falling within this group usually weigh over 250 pounds and have large waists; (2) men who are at least six feet four inches tall; men falling within this group usually weigh at least 150 and have waists smaller than their chests; and (3) men ranging in height from six feet to six feet three inches tall; men falling within this category generally have an unusual anatomical feature, such as long legs, a large trunk, or large feet. Approximately, 50% of those men in this group are potential customers of plaintiffs. Testimony of James Kelley; Plaintiffs’ Exhibit 33. Approximately 2% to 3% of the male population are potential customers. Testimony of James Kelley; Plaintiffs’ Exhibit 33. See also Plaintiffs’ Exhibit 16. Finally, since a substantial number of men do not like to shop for clothing, the fourth category of King-Size’s customers are women; typically, these women are wives of men who use the products that King-Size sells. More than one-half of plaintiff’s customers fall into this category. Testimony of James Kelley. 36. Although retailers of large size men’s clothes, including plaintiffs and defendants, frequently use the terms “Tall and Big” or “Big and Tall” to describe their businesses or products, Testimony of James Kelley; Testimony of Frank Winker; Plaintiffs’ Exhibits 44, 46A, 47, 48, 58, 60, 63-65; Defendants’ Exhibits 20, 21, 23, 24, 29, 34, 35, 37, 45, 55, 59, 67, 71, 75, 76, 96, 97, a number of retailers of large size men’s clothes, besides plaintiffs and defendants have utilized in the past or are presently utilizing the term “king size” to describe men’s clothing in larger than normal sizes. See Plaintiffs’ Exhibit 44. Examples of such retailers are as follows: Poley’s King Size Clothes, Plaintiffs’ Exhibits 34, 35; Defendants’ Exhibits 4-21, 23, 24, 26, 27, 35-41, 44, 50; Hirsch’s, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 47; Craig’s King Size Clothes, Defendants’ Exhibit 69; Baucom’s Shoe Store, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 51; David’s King Size Clothes, Testimony of Frank Winker; Harry’s King Size Clothes, Plaintiffs’ Exhibits 34, 41; Defendants’ Exhibits 33, 34, 71; King Size Clothes, Inc. (Hyroop’s), Plaintiffs’ Exhibit 34; Defendants’ Exhibits 29, 45; Olson’s [King Size Shop] Clothing Store, Inc., Plaintiffs’ Exhibit 34; Defendants’ Exhibit 59; Roy F. Gill, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 68; Ramparts, Plaintiffs’ Exhibit 34; Defendants’ Exhibits 49, 56; Harrison Shoes, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 54; Gates King Size Clothes, Plaintiffs’ Exhibits 34, 38, 42, 49; Defendants’ Exhibit 53; Chandler’s, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 57; Boyd’s Men’s Store, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 60; Hewes & Potter, Defendants’ Exhibit 99; J. Packard Shirt Company, Plaintiffs’ Exhibit 34; Defendants’ Exhibits 39, 64; Duffy T’s King Size Apparel, Inc., Plaintiffs’ Exhibits 34, 54; Defendants’ Exhibit 65; Albany Street Factory Store, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 48; King-Size Shoes, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 52; Berman’s King Size Clothes, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 46; Budget King Size, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 58; Gentlemen’s Wear House, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 63; London Majesty, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 66; Korvettes, Defendants’ Exhibit 62; The Style Store for Big & Tall, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 67; The Justin Companies, Plaintiffs’ Exhibit 34; Defendants’ Exhibit 70; and Mr. Tall & Big of Las Vegas, Defendants’ Exhibit 104. Even the J. C. Penney Company considered employing at one time the term “king size” to refer to its clothing for large size men. Testimony of James Kelley; Plaintiffs’ Exhibit 34; Defendants’ Exhibit 72. Manufacturers in the clothing industry employ also the words “king size” to describe men’s wearing apparel for larger than normal sizes. Testimony of Frank Winker; Plaintiffs’ Exhibit 29 at 89; Defendants’ Exhibits 21, 24, 26, 27, 30, 34, 41-43, 64, 93-95, 109S, 109V, 117. 37. Plaintiffs have used descriptively the term “king size” in their advertisements, Plaintiffs’ Exhibit 28; Defendants’ Exhibit 108, and in their mail order catalogs, see, e.g., “Arrow Goes King Size”, Plaintiffs’ Exhibit 29 at 26; “McGregor Jackets Go King Size”, Plaintiffs’ Exhibit 29 at 42; “Jantzen Goes King Size”, Plaintiffs’ Exhibit 29 at 74; “King Size Hats and Gloves”, Plaintiffs’ Exhibit 29 at 78; “London Fog Goes King Size”, Plaintiffs’ Exhibit 29 at 79; “Adler Socks Goes King Size”, Plaintiffs’ Exhibit 29 at 85; “Arrow King Size Handkerchiefs”, Plaintiffs’ Exhibit 29 at 89; “Clarke’s Goes King Size”, Plaintiffs’ Exhibit 29 at 104. See also Defendants’ Exhibits 22, 25, 27, 79, 99. 38. The term “king size” is widely used in describing the size of various consumer products aside from shoes and wearing apparel: automatic dishwashing detergent, Defendants’ Exhibits 1090, 109P; back massager, Defendants’ Exhibit 32; beds or mattresses, Defendants’ Exhibits 98 B-D, 98F, 98 K-M, 98 P-U, 98W, 98Y, 98 CC-GG; bed sheets, Defendants’ Exhibits 98E, 98BB, 98 II — JJ, 98LL; bed spreads, Defendants’ Exhibit 98HH; chairs, Defendants’ Exhibit 98U; cigarettes, Defendants’ Exhibits 98A, 98H, 98V, 103, 109J; a cigarette case, Defendants’ Exhibit 109U; comforters, Defendants’ Exhibit 98N; corn chips, Defendants’ Exhibit 1091; dishwashing liquid, Defendants’ Exhibits 109L, 109M; drinking tankards, Defendants’ Exhibit 116; frozen dinners, Defendants’ Exhibit 107; household disinfectant, Defendants’ Exhibit 109Q; laundry detergent, Defendants’ Exhibits 109 A-H, 109K, 109N, 109R, 109W, 109X; mattress pads, Defendants’ Exhibits 98AA, 98KK; pillows, Defendants’ Exhibits 98X, 98Z; plan book for use in the construction of a model railroad track, Defendants’ Exhibit 105; playing cards, Defendants’ Exhibit 106; styling and wraps, Defendants’ Exhibit 109T; towels, Defendants’ Exhibit 98E, and waterbeds, Defendants’ Exhibits 980, 98R. 39. The term “king size” is defined in Webster’s Third New International Dictionary (1966) as “longer than the regular or standard size, .. . much larger in size than is usual for a particular class of things: OVERSIZE. . . . ” Defendants’ Exhibit 86. The 1975 edition of the Oxford Illustrated Dictionary similarly defines the term “king size” as larger than standard size. Defendants’ Exhibit 79. Excerpts from ten additional dictionaries provided similar definitions. Defendants’ Exhibits 78, 80-91, 102. See also Defendants’ Exhibit 116. 40. Plaintiffs first learned of defendants’ existence in May, 1977 through one of defendants’ advertisements. Prior to this time, plaintiffs were unaware of defendants’ existence. Admission of Fact; Testimony of James Kelley. 41. During the trial of the instant cause, King-Size called as witnesses several of its customers residing in the Houston area. Each of these individuals testified that they associated the words “king size” with plaintiffs. Testimony of Dora Humke; Testimony of George Anderson; Testimony of Cletus Witke; Testimony of Rosemary Ann Parker; Testimony of J. Mitchell; Testimony of Jerry McGowen. Several of these persons testified also that on at least one occasion in the past, they had seen a clothing store with the words “king size” in its name and had mistakenly believed this store to be associated with plaintiffs. These persons identified positively this store as being located on the corner of Westheimer and Voss. Testimony of Dora Humpke; Testimony of Cletus Witke; Testimony of Rosemary Ann Parker; Testimony of Jerry McGowen. This store was not one of defendants’ stores. Testimony of Frank Winker. 42. Of those customers who testified, there was no consensus regarding whether the use of “king size” by both plaintiffs and defendants was confusing. One witness was unsure whether she ever confused defendants’ Houston store with plaintiffs, Testimony of Dora Humpke; another witness testified that at one time he thought that defendants’ Houston store was affiliated with plaintiffs, Testimony of George Anderson, while yet another witness shopped at defendants’ Houston store but never confused this store with plaintiffs’ store. Testimony of Cletus Witke. 43. Defendants introduced a survey on the issue of secondary meaning. Jack Taylor, an expert in the field of marketing research, designed and supervised a telephonic survey in which a total of 400 men who were at least 6' 2" in height from the cities of Dallas and Houston were interviewed during the period of March 9-12, 1981. Testimony of Jack Taylor; Defendants’ Exhibit 112A. The objectives of the survey were “to determine what is brought to mind when the term king size is mentioned; [t]o determine what is brought to mind when the term is associated with men’s apparel; [t]o measure awareness of both stores.” Defendants’ Exhibit 112A. 44. The names of those men who were interviewed were obtained from records of Texas drivers’ licenses issued or renewed in the past two years to men who were 6' 2" or more in height. The sample of men in Dallas came from that area of the city with the number 752 as the first three digits in the zip code. See Plaintiffs’ Exhibit 71. In Houston, the sample was drawn from areas with the zip codes 77001 — 77031; such areas are located in the central and eastern sections of Houston. See Plaintiffs’ Exhibit 70. There were 1,820 names drawn from each market. From this sample 200 names from each city were then randomly selected. Testimony of Jack Taylor; Defendants’ Exhibit 112A. 45. Those persons who participated in the survey as interviewers did not know for whom the survey was being conducted. The interviewers introduced themselves as representatives of M/A/R/C Consumer Research, the company with which defendants’ expert is associated. Testimony of Jack Taylor; Defendants’ Exhibits 112A, 114. The persons being interviewed were not informed, however, of the identity of the sponsor of the survey. Defendants’ Exhibit 112A. The interviewers worked in a single room with a supervisor and monitor present at all times. The monitor listened to conversations on a random basis in order to ensure that all questions were asked properly and that a good rapport was being maintained with those persons being interviewed. The supervisor was available to deal with sample control, any questions that might arise and the administration of the survey. Testimony of Jack Taylor; Defendants’ Exhibit 112A. 46. The survey consisted of a series of questions drafted by Mr. Taylor in conformity with the objectives outlined above. Testimony of Jack Taylor; Defendants’ Exhibit 112A. Those men interviewed were asked what came to mind when “king size” was mentioned; what other things did they think of; what they thought of when “king size” was mentioned in connection with men’s wearing apparel or clothing; and what was the name of the store that came to mind. Testimony of Jack Taylor; Defendants’ Exhibit 112A. In response to the first two questions, a substantial number of men identified products other than clothes or stores or mail order companies selling men’s clothes. As to the third question, a substantial majority answered either clothes for larger than normal size men, Dallas — 33%, Houston — 29%, stores selling men’s wearing apparel or clothes, Dallas — 12%, Houston — 13%, or mentioned specific items of wearing apparel. A very small percentage of interviewees responded to the question with names of specific stores or companies. Defendants’ Exhibit 112A. The report, Defendants’ Exhibit 112A, reveals that 2% answered King-Size Company, 1% King Size Company Men’s Shop, 1% King Size Mail Order, and 1% King size store/clothes. Testimony of Jack Taylor; Defendants’ Exhibit 112A. In response to the fourth question, only a small percentage of men interviewed identified either plaintiffs or defendants; plaintiffs: Dallas — 2%, Houston — 5%; defendants: Dallas — 2%; Houston — 2%. The other stores that were identified specifically by name included Tally Ho, Dallas — 5%; Zindlers’, Houston — 2%; Hyroop’s, Dallas — 1% and Harold’s, Houston — 1%. Defendants’ Exhibit 112A. The members of the sample interviewed were asked also if they had ever heard of a men’s clothing store specializing in large sizes and called “King Size Company Men’s Shop” or “Frank’s King Size Clothes”. The report of the survey indicates that 15% of those interviewed in Dallas and 21% of those interviewed in Houston had heard of King Size Company Men’s Shop, and 13% of those interviewed in Houston and Dallas had heard of Frank’s King Size Clothes. Defendants’ Exhibit 112A. The fifth question in the survey sought the number of men being interviewed who had ever purchased clothing from mail order companies or stores specializing in larger sizes. Defendants’ Exhibit 112A. Defendants’ Exhibit 112A indicates that of those men interviewed, 67% of the men in Dallas and 66% in Houston had never purchased men’s clothing from mail order companies or stores specializing in larger sizes. 47. Defendant Winker testified during the trial that he was not aware of any instances of actual confusion between defendants and plaintiffs since defendants opened the first retail store in 1972. 48. After plaintiffs filed this suit in 1977, defendant Winker instructed the manager of defendants’ retail stores to inform him of any instances of actual confusion between plaintiffs and defendants. Testimony of Frank Winker. Since that time, defendant Winker has not been informed of one instance of actual confusion. Testimony of Frank Winker. 49. In a record replete with inconsistencies permitting contrary inferences, the Court has carefully reviewed all of the evidence and concludes that the more credible evidence supports the above Findings of Fact. Conclusions of Law 1. This Court has jurisdiction over the parties and the subject matter of this cause pursuant to 28 U.S.C. § 1338 (1976), and 15 U.S.C. § 1121 (1982). I. Trademark Infringement A. Strength of the Mark 2. Plaintiffs claim first the benefit of 15 U.S.C. § 1057(b) (1963), which provides that registration on the Principal Register “shall be prima facie evidence of registrant’s ownership of the mark and of registrant’s exclusive right to use the mark in commerce in connection with the goods or services specified in the certificate subject to any conditions or limitations stated therein.” See Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366, 378 (7th Cir.), cert, denied, 429 U.S. 830, 97 S.Ct. 91, 50 L.Ed.2d 94 (1976); Waples-Platter Companies v. General Foods Corp., 439 F.Supp. 551, 574 (N.D.Tex.1977). See also 15 U.S.C. § 1115(a) (1982). Although a statutory presumption of validity is accorded “king size” by reason of plaintiffs’ registrations, 15 U.S.C. §§ 1057(b), 1115(a), Refer to Finding 28, “this presumption is rebuttable and may be overcome by establishing the generic or descriptive nature of the mark.” Vision Center v. Opticks, Inc., 596 F.2d 111, 119 (5th Cir. 1979), cert, denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980). See also Homemakers Home and Health Care Services, Inc. v. Chicago Home for the Friendless, 484 F.2d 625, 628 (7th Cir. 1973); Flexitized, Inc. v. National Flexitized Corp., 335 F.2d 774, 779 (2d Cir. 1964), cert, denied, 380 U.S. 913, 85 S.Ct. 899, 13 L.Ed.2d 799 (1965). The threshold question then is whether the mark “king size” is protectable or registerable. Vision Center v. Opticks, Inc., supra; American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 10 (5th Cir. 1974); World Carpets, Inc. v. Dick Littrell’s New World Carpets, 438 F.2d 482, 485 (5th Cir. 1971). Four categories of terms, in ascending order of strength, have been defined to assist the courts in their determination in this regard. These categories are as follows: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful. Safeway Stores, Inc. v. Safeway Discount Drugs, Inc., 675 F.2d 1160, 1164 (11th Cir. 1982); Vision Center v. Opticks, Inc., supra, at 115; Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79 (7th Cir. 1977), cert, denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 (1978); Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976). “Strong marks are given ‘strong’ protection — protection over a wide range of related products and variations on appearance of the mark”, while “[w]eak marks are given a narrow range of products both as to products and as to visual variations.” 1 J. Thomas McCarthy, Trademarks and Unfair Competition § 11:24, at 398-99 (footnote omitted). “A generic term is the name of a particular genus or class of which an individual article or service is but a member.” Vision Center v. Opticks, Inc., supra, at 115; see also Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1183 (5th Cir. 1980), cert, denied, 450 U.S. 981, 101 S.Ct. 1516, 67 L.Ed.2d 816 (1981); Anti-Monopoly, Inc. v. General Mills Fun Group, 611 F.2d 296, 301-04 (9th Cir. 1979); Miller Brewing Co. v. G. Heileman Brewing Co., supra, at 79. A generic term is incapable of achieving trade name protection. Soweco, Inc. v. Shell Oil Co., supra, at 1183; Vision Center v. Opticks, Inc., supra, at 115; Miller Brewing Co. v. G. Heileman Brewing Co., supra, at 79. Moreover, if a registered mark at any time became generic with respect to a particular article, the mark’s registration can be cancelled. 15 U.S.C. § 1064(c). See, e.g., Anti-Monopoly, Inc. v. General Mills Fun Group, supra, at 301; Haughton Elevator Co. v. Seeberger, 85 U.S.P.Q. 80 (Comm’r Pat. 1950). A descriptive term, on the other hand, specifically describes a characteristic or quality of a product or service. Soweco, Inc. v. Shell Oil Co., supra, at 1183; Vision Center v. Opticks, Inc., supra, at 115; Miller Brewing Co. v. G. Heileman Brewing Co., supra, at 79. “[A] mark is descriptive if it is descriptive of: the intended purpose, function or use of the goods; of the size of the goods; of the class of users of the goods, of a desirable characteristic of the goods, or of the end effect upon the user.” 1 J. Thomas McCarthy, supra, § 11:5, at 353. A descriptive term is not automatically protectable unless it has acquired a secondary meaning. 15 U.S.C. § 1052(e)(1) (1976). See also Safeway Stores, Inc. v. Safeway Discount Drugs, supra, at 1165 n.9; Soweco, Inc. v. Shell Oil Co., supra, at 1183; Vision Center v. Opticks, Inc., supra, at 115; Miller Brewing Co. v. G. Heileman Brewing Co., supra, at 79; Abercrombie & Fitch Co. v. Hunting World, Inc., supra, at 10. As the United States Supreme Court stated in Estate of P. D. Beckwith v. Commissioner of Patents, 252 U.S. 538, 543-44, 40 S.Ct. 414, 416, 64 L.Ed. 705 (1920): It was settled long prior to the Trademark Registration Act that the law would not secure to any person the exclusive use of a trademark consisting merely of words descriptive of the qualities, ingredients, or characteristics of an article of trade. This for the reason that the function of a trademark is to point distinctively, either by its own meaning or by association, to the origin or ownership of the wares to which it is applied, and words merely descriptive of qualities, in-gradients, or characteristics, when used alone, do not do this. Other like goods, equal to them in all respects, may be manufactured or dealt in by others, who, with equal truth, may use, and must be left free to use, the same language of description in placing their goods before the public. See also Armour & Co. v. Organon, Inc., 245 F.2d 495, 498, 500, 44 Cust. & Pat.App. 1010 (1957). One commentator has discussed also the rationale behind the requirement that descriptive terms have secondary meaning in order to be protectable: (1) Descriptive adjectives can be truthfully applied to a whole range of goods and services. Thus, a descriptive term cannot, per se, function to identify and distinguish the goods or services of only one seller in the marketplace. A descriptive term merely informs the buyer of an alleged quality of the product. Many other products may have similar qualities, and use of the term will not help the consumer to distinguish products of different sellers. For example, the use of BEST on writing paper or TASTY on bread merely describes something about the product. To the consumer, these terms are merely laudatory or informative advertising. Also, terms which describe a quality or appearance of a product, such as SUDSY ammonia, do not per se identify and distinguish a given seller’s product. (2) Descriptive terms are regarded as words in the public domain in the sense that all sellers should be free to truthfully use these terms to describe their merchandise. For example, the Court of Customs and Patent Appeals stated that descriptive terms cannot be accorded protection without secondary meaning since, ‘for policy reasons, descriptive words must be left free for public use.’ Other courts state this concept in terms of ‘the danger of depleting the general vocabulary available to all for description,’ and that ‘one competitor will not be permitted to impoverish the language of commerce by preventing his fellows from fairly describing their own goods.’ That is, one seller cannot, by mere adoption and use, obtain an exclusive right to prevent others from using descriptive terms. No one seller should be allowed the exclusive right to describe a product by its primary characteristic, and thus pre-empt or limit competitors’ use of the term to describe their own products. 1 J. Thomas McCarthy, supra, § 11:5, at 354-55 (footnotes omitted). The next category of marks is composed of suggestive terms. A suggestive term intimates, rather than describes a characteristic or quality of a product or service and requires imagination by the observer in order to be understood. Soweco, Inc. v. Shell Oil Co., supra, at 1184; Vision Center v. Opticks, Inc., supra, at 115; Miller Brewing Co. v. G. Heileman Brewing Co., supra, at 79. A suggestive term does not require proof of secondary meaning in order to receive trademark protection. Soweco, Inc. v. Shell Oil Co., supra, at 1184; Vision Center v. Opticks, Inc., supra, at 115. The most common types of marks are arbitrary or fanciful marks. Such marks bear no relationship to the product or service. Soweco, Inc. v. Shell Oil Co., supra, at 1184. “ ‘Fanciful’ marks consist of ‘coined’ words which have been invented for the sole purpose of functioning as a trademark. Such marks comprise words which are either totally unknown in the language or are completely out of common usage at the time.... ” 1 J. Thomas McCarthy, supra, § 11:3, at 347. Unlike fanciful marks, arbitrary marks are composed of words “which are in common linguistic use but which, when used with the goods or services, neither suggest nor describe any ingredient, quality or characteristic of those goods or services.” Id. at 350. While the four categories of terms are easily defined, the lines of demarcation between the various categories are not always clear. This difficulty is compounded further “because a term that is in one category for a particular product may be in quite a different category for another, because a term may shift from one category to another in light of differences in usage through time, because a term may have one meaning to one group of users and a different one to others, and because the same term may be put to different uses with respect to a single product.” Abercrombie & Fitch Co. v. Hunting World, Inc., supra, at 9. It has recognized further that [t]he distinctiveness of a mark cannot be determined in the abstract, but only by reference to the goods or services upon which the mark is used. For example, the mark BRILLANT may be ‘descriptive’ on diamonds, ‘suggestive’ on furniture polish, and ‘arbitrary’ on canned applesauce. The exact position of the line between descriptive and suggestive marks is almost impossible to define in the abstract. 1 J. Thomas McCarthy, supra, § 11:20, at 389. This difficulty has been judicially recognized: “It is quite impossible to get any rule out of the cases beyond this: That the validity of the mark ends where suggestion ends and description begins.” Franklin Knitting Mills, Inc. v. Fashionit Sweater Mills, Inc., 297 F. 247, 248 (S.D.N.Y.1923), aff’d, 4 F.2d 1018 (2d Cir. 1925). See also Soweco, Inc. v. Shell Oil Co., supra, at 1183. 3. In the instant cause, the Court is confronted with the task of determining whether the mark “king size” is descriptive or suggestive. A thorough review of the case law has uncovered various tests which have been used in making such a determination. Some courts have considered whether the mark described the ingredients, qualities, or characteristics of the goods. See Andrew J. McPartland, Inc. v. Montgomery Ward & Co., 164 F.2d 603, 604-05, 35 Cust. & Pat.App. 802 (1947), cert, denied, 333 U.S. 875, 68 S.Ct. 904, 92 L.Ed. 1151 (1948). Subject also to consideration by other courts was whether the mark conveyed information regarding a function, purpose, or use of the goods. In re Reynolds Metals Co., 480 F.2d 902, 903 (Cust. & Pat.App.1973); In re Realistic Co., 440 F.2d 1393, 1394 (Cust. & Pat.App.1971); Modern Optics, Inc. v. Univis Lens Co., 234 F.2d 504, 505 (2d Cir. 1956). Further considerations include whether the mark describes a feature or part of the goods, Sylvania Elec. Prods. Inc. v. Dura Elec. Lamp Co., 247 F.2d 730, 732-33 (3rd Cir. 1957), and whether it conveys any information about any properties of the goods. See J. Gibson, Trademark Protection and Practice § 23, at 2-31 (1977); 1 J. Thomas McCarthy, supra, § 11:21. Perhaps the best statement of the distinction between the two terms, however, is found in Union Carbide Corp. v. Ever-Ready Inc., supra, at 379: “Generally speaking, if the mark imports information directly, it is descriptive. If it stands for an idea which requires some operation of the imagination to connect it with the goods, it is suggestive.” See also A. Seidel, S. Dalroff & E. Gonda, Trademark Law and Practice § 406, at 77 (1963); Vision Center v. Opticks, Inc., supra, at 116; Abercrombie & Fitch Co. v. Hunting World, Inc., supra, at 11. (“A term is suggestive if it requires imagination, thought and perception to reach a conclusion as to the nature of the goods. A term is descriptive if it forthwith conveys an immediate idea of the ingredients, qualities or characteristics of the goods.”) It has been recognized that “[t]he dictionary definition of the [mark] is an appropriate and relevant indication ‘of the ordinary significance and meaning of words’ to the public.” American Heritage Life Ins. Co. v. Heritage Life Ins. Co., supra, at 11 n.5; Claremont Polychemical Corp. v. Atlantic Powdered Metals, Inc., 470 F.2d 636, 637 (Cust. & Pat.App.1972). “And of course, the only relevant reference point is meaning in the eyes of the purchasing public.” American Heritage Life Ins. Co. v. Heritage Life Ins. Co., supra, at 11 n.5. During the trial of this cause, the defendants introduced a number of dictionaries in support of their position that “king size” is descriptive. One of the dictionaries introduced, Webster’s Third New International Dictionary (1966), defines the words “king size” as “longer than the regular or standard size, . . . much larger in size than is usual for a particular class of things: OVERSIZE. ...” Refer to Finding 39. The 1975 edition of the Oxford Illustrated Dictionary similarly defines the term “king size” as larger than standard size. Refer to Finding 39. Excerpts from ten additional dictionaries provided similar definitions. Refer to Finding 39. Illustrative of the dictionary definition of “king size”, defendants introduced a number of consumer products which contained the term “king size” to indicate that the particular product was larger than normal size. Refer to Finding 38. Consequently, it is readily apparent that the term “king size” implies larger than normal or larger than the standard size. In addition to the dictionary definition, the Fifth Circuit has recognized another indicator of whether a term is descriptive: “the extent to which it has been used in the trade names of others offering a similar service or product.” Vision Center v. Opticks, Inc., supra, at 117. Although evidence was introduced indicating that the large men wearing apparel industry generally uses the terms “Tall and Big” or “Big and Tall” in their names, Refer to Finding 36, the term “king size” has in the past and is presently being used in the corporate names of a number of retailers selling large men’s wearing apparel. Refer to Finding 36. In addition, a number of retailers and manufacturers, and even plaintiffs themselves, use “king size” to describe men’s wearing apparel and shoes in larger than normal sizes. Refer to Findings 36, 37. This third party use of “king size” is probative of the descriptiveness of the mark “king size”. Amstar Corp. v. Domino’s Pizza Inc., 615 F.2d 252, 260 (5th Cir.), cert, denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980); Armstrong Cork Co. v. World Carpets, Inc., 597 F.2d 496, 505 (5th Cir.), cert, denied, 444 U.S. 932, 100 S.Ct. 277, 62 L.Ed.2d 190 (1979); Vision Center v. Opticks, Inc., supra, at 117 (“[Ajnother barometer of the descriptiveness vel non of a particular name is the extent to which it has been used in the trade names of others offering a similar ... product.”); American Heritage Life Ins. Co. v. Heritage Life Ins. Co., supra, at 13; Holiday Inns, Inc. v. Holiday Out in America, 481 F.2d 445, 448 (5th Cir. 1973). On the basis of the above analysis, the Court concludes that the term “king size” is descriptive, as such term is indicative of larger than normal size products or, as in the instant cause, shoes and wearing apparel for larger than average size men. B. Secondary Meaning 4. As the Court has concluded that the mark “king size” is descriptive, the Court’s inquiry is directed now to whether “king size” has acquired secondary meaning. See Vision Center v. Opticks, Inc., supra, at 118. In order to establish secondary meaning, the “[plaintiffs] must show more than a subordinate meaning which applies to it. [Plaintiffs] must show that the primary significance of the term in the minds of the consuming public is not the product but the producer.” Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 118, 59 S.Ct. 109, 113, 83 L.Ed. 73 (1938); see also Vision Center v. Opticks, Inc., supra, at 118; American Heritage Life Ins. Co. v. Heritage Life Ins. Co., supra, at 12. Because the Court has concluded that the mark “king size” is descriptive, see Conclusion 3, plaintiffs bear a high degree of proof. Vision Center v. Opticks, Inc., supra, at 118. See also 1 J. Thomas McCarthy, supra, § 15:11, at 540-41. The evidentiary onus placed on plaintiffs in this regard has been described as “substantial where the proposed mark’s original or primary meaning suggests the basic nature of the [product] to be [sold].” American Heritage Life Ins. Co. v. Heritage Life Ins. Co., supra, at 12. See Vision Center v. Opticks, Inc., supra, at 118. See also 3 R. Callman, The Law of Unfair Competition, Trademarks, and Monopolies § 77.3, at 359 (3d ed. 1969). Secondary meaning can be established by direct or circumstantial evidence. Variables to be considered in determining whether a mark has acquired secondary meaning include: (1) length of time and manner of its use; (2) the nature and extent of its use; and (3) the efforts made in the direction of promoting a conscious connection in the public’s mind between the mark and a particular source of origin. Volkswagenwerk Aktiengesellschaft v. Rickard, 492 F.2d 474, 478 (5th Cir. 1974); 3 R. Callman, supra, § 77.3, at 359. “In determining whether a word or . .. has acquired secondary meaning, the crucial issue is not the effort which was made to create it but the effectiveness of that effort,” Id. at 360, and “[t]he chief inquiry is the attitude of the consumer toward the mark: does it denote to him a ‘single thing coming from a single source’?” Aloe Creme Laboratories, Inc. v. Milsan, Inc., 423 F.2d 845, 849 (5th Cir.), cert, denied, 398 U.S. 928, 90 S.Ct. 1818, 26 L.Ed.2d 90 (1970), citing, Coca-Cola Co. v. Koke Co. of America, 254 U.S. 143, 146, 41 S.Ct. 113, 114, 65 L.Ed. 189 (1920). See also Vision Center v. Opticks, Inc., supra, at 119; American Heritage Life Ins. Co. v. Heritage Life Ins. Co., supra, at 12; Carter-Wallace, Inc. v. Procter & Gamble Co., 434 F.2d 794 at 802 (9th Cir. 1970). The importance of direct evidence of public recognition in the form of surveys or similar evidence has been stressed by several courts. Vision Center v. Opticks, Inc., supra, at 119; Aloe Creme Laboratories, Inc. v. Milsan, Inc., supra, at 849. 5. During the trial of the case sub judice, a considerable amount of evidence was introduced by which King-Size sought to establish inferentially the state of the public mind. Plaintiffs have used the mark “king size” in their corporate names since 1947. Refer to Findings 7, 23. See, however, Vision Center v. Opticks, Inc., supra, at 119 (“ ‘[C]ourts have summarily rejected claims of secondary meaning predicated solely upon the continued use of the mark for many years.’ ”), citing, 3 R. Callmann, supra, § 77.3. During this time, plaintiffs have increased their advertising budget from $5,300 in 1947 to $875,500 in 1977; it was estimated at trial that $970,000 would be spent in 1981 to advertise their business of selling wearing apparel for larger than normal size men to the American consumer. Refer to Findings 9, 32. Plaintiffs’ advertisements have appeared in magazines with a nationwide circulation in cities throughout the country. Refer to Finding 33. Plaintiffs have placed advertisements also in the yellow pages of telephone books of large metropolitan cities, and to a limited extent, plaintiffs have advertised on television and radio. Refer to Finding 33. Due to the nature of plaintiffs’ business, plaintiffs’ marketing efforts include the promotion of their products through mail order catalogs which are mailed to plaintiffs’ customers and potential customers. Refer to Finding 33. Although the sums spent on advertising, its scope, nature and duration are all factors that aid the Court in determining the presence of secondary meaning, “it must be remembered that the question is not the extent of the promotional efforts, but their effectiveness in altering the meaning of [“king size”] to the consuming public.” Aloe Creme Laboratories, Inc. v. Milsan, Inc., supra, at 850 (emphasis in original). In the instant cause, plaintiffs did not introduce direct evidence of consumer awareness of the significance of “king size” in the form of an objective survey. Rather, the direct evidence upon which plaintiffs relied were six of its customers residing in the Houston area which plaintiffs called as witnesses. Each of these witnesses testified that he or she associated the words “king size” with plaintiffs. Refer to Finding 41. There was no evidence that these six witnesses were representative of customers and potential customers of King-Size. In rebuttal to King-Size’s evidence, Frank introduced circumstantial evidence indicating that the term “king size” has been used in the past or is presently being used by other retailers of wearing apparel for larger than normal size men. Refer to Finding 36. “This lack of exclusivity in the use of the [term “king size”] in the [large men wearing apparel] industry is a factor militating against a finding of secondary meaning in [King-Size’s] use of the [term].” American Heritage Life Ins. Co. v. Heritage Life Ins. Co., supra, at 13; Carter-Wallace, Inc. v. Procter & Gamble Co., supra, at 802. In contradiction also to plaintiffs’ evidentiary showing of secondary meaning, defendants introduced a survey conducted in Houston and Dallas. Refer to Findings 43-46. Since it would be impossible and impractical to bring every potentially confused consumer into court and have these consumers testify, a survey can be highly probative on the issue of secondary meaning. 2 J. Thomas McCarthy, supra, § 32:46, at 498-500. The probative value of the survey is dependent upon the survey being prepared fairly and its results directed to the relevant issues. In the Handbook of Recommended Procedures for the Trial of Protracted' Cases, 25 F.R.D. 351 (1960), the Judicial Conference of the United States has listed several factors important to a court’s assessment of a survey. The Judicial Conference recommends that the proponent of the survey establish the following: that the proper universe was examined, that a representative sample was drawn from that universe, and that the mode of questioning the interviewees was correct. [The proponent] should be required to show that: the persons conducting the survey were recognized experts; the data gathered was accurately reported; the sample design, the questionnaire and the interviewing were in accordance with generally accepted standards of objective procedure and statistics in the field of such surveys; the sample design and the interviews were conducted independently of the attorneys; and the interviewers, trained in this field, had no knowledge of the litigation or the purposes for which the survey was to be used. Id., at 429 (footnotes omitted). The use of these factors in considering the probative value of survey evidence offered in a trademark infringement case was approved by the Fifth Circuit in Amstar Corp. v. Domino’s Pizza, Inc., supra, at 264. For a general discussion of the use of public surveys or polls as evidence, see Annot. 76 A.L.R.2d 623 (1961). The first step in reviewing a survey is to determine whether the proper universe was selected and examined. The Fifth Circuit has stated that “one of the most important factors in assessing the validity of an opinion poll is the adequacy of the ‘survey universe,’ that is, the persons interviewed must adequately represent the opinions which are relevant to the litigation.” Amstar Corp. v. Domino’s Pizza, Inc., supra, at 264. See also, American Basketball Assoc. v. AMF Voit, Inc., 358 F.Supp. 981, 986 (S.D.N.Y.), aff’d, 487 F.2d 1393 (2d Cir. 1973), cert, denied, 416 U.S. 986, 94 S.Ct. 2389, 40 L.Ed.2d 763 (1974); 2 J. Thomas McCarthy, supra, § 32:47, at 500 (“The universe is that segment of the population whose characteristics are relevant to the mental associations at issue.”) (footnote omitted). Upon reviewing the survey in light of the first factor, the Court concludes that serious and fatal errors exist in the survey universe selected by defendants’ expert. Defendants’ universe which is composed of men who are 6'2" in height or over is far too narrow to give a fair indication of whether the consumers of wearing apparel for large size men do not associate the term “king size” with plaintiffs. Aside from the fact that only approximately one-third of those men interviewed were consumers in the relevant market, Refer to Finding 46, the survey excluded other groups of consumers of wearing apparel for large size men, i.e., short, heavy men, men ranging in height from 6' to 6'2" with an unusual anatomical feature which requires them to purchase extra-large size clothes, and finally, women in families where such women are the principal purchasers of the product. Refer to Finding 35. In addition to the aforementioned deficiency, there are further problems with defendants’ sample from the Houston area. The Houston sample is comprised of men in only the central and eastern parts of Houston, Refer to Finding 44, and excludes customers from the southern and western sections of Houston; plaintiffs’ retail store is located in the southwestern area of Houston. Refer to Finding 22. While the Court declines to fault the survey for not restricting the geographical area of the survey to a prescribed radius around plaintiffs’ store, Refer to Finding 22, see Sears, Roebuck & Co. v. Allstate Driving School, Inc., 301 F.Supp. 4, 18-19 (E.D.N.Y.1969), the survey universe is nevertheless defective for failing to include the entire Houston area, or at the very least, to include the area around plaintiffs’ store. Since the survey failed to examine the proper universe, the survey must be discounted in its entirety, Exxon Corp. v. Texas Motor Exchange of Houston, Inc., 628 F.2d 500,