                                  UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                  No. 08-1375


B & J     ENTERPRISES,     LTD,    trading   as   Washington   Talent
Agency,

                Plaintiff – Appellant,

           v.

KEN     GIORDANO;        ALBRECHT       ENTERTAINMENT      SERVICES,
INCORPORATED,

                Defendants – Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Marvin J. Garbis, Senior District
Judge. (8:06-cv-01235-MJG)


Argued:   March 24, 2009                           Decided:    May 18, 2009


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:    Louis Fireison, LOUIS FIREISON & ASSOCIATES, PA,
Bethesda, Maryland, for Appellant. William D. Day, GILL, SIPPEL
& GALLAGHER, Rockville, Maryland, for Appellees.     ON BRIEF:
Vincent T. Lyon, Patricia H. Ley, LOUIS FIREISON & ASSOCIATES,
PA, Bethesda, Maryland, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Plaintiff B & J Enterprises, Ltd, appeals from a summary

judgment award in favor of defendants Ken Giordano and Albrecht

Entertainment      Services,        Incorporated,          with   respect    to   B & J’s

trademark       infringement        and     cybersquatting         claims.        In   its

appeal,    B & J    contends        that    the    district       court   erred   in    two

respects:        (1)   by      striking      various        letters    and   affidavits

submitted by B & J on the summary judgment issue; and (2) by

awarding summary judgment to the defendants and denying B & J’s

cross-motion for such relief.                As explained below, we agree with

the district court and affirm.



                                             I.

     B & J       operates      a    business        that    provides      entertainment

talent    for    events   in       the    greater    Washington,      D.C.    area     (the

relevant    geographic      area),         using    the    name    “Washington     Talent

Agency.”     Although B & J had used this name since 1967, it did

not seek registration of the “Washington Talent Agency” mark

until July 2006, after the initiation of this lawsuit. 1                                In


     1
       In July 2006, B & J filed an application to register
“Washington Talent Agency” with the Patent and Trademark Office
(the “PTO”).    The PTO subsequently published the mark for
opposition, and the defendants opposed B & J’s application,
which remained pending during the district court proceedings.
In this opinion, we use the terms “mark,” “service mark,” and
“trademark” somewhat interchangeably, referring to a mark that
(Continued)
                                             2
January 2005, Albrecht, doing business as “USA Talent Agency,”

and    Giordano,        Albrecht’s    owner         and    chief   executive         officer,

registered                 four           separate                 domain              names:

“WashingtonTalentAgency.com,”                             “MarylandTalentAgency.com,”

“VirginiaTalentAgency.com,”                 and          “ColoradoTalentAgency.com.” 2

Each       of   these    domain     names      is    associated       with      a    specific

internet        website,    and    each   of       the    websites    is    a   portal     for

Albrecht’s        parent     website,       “USATalentAgency.com.” 3                 Sometime

after June 2005, B & J contacted the defendants, explained that

B & J had been using the name “Washington Talent Agency” for

almost      forty    years,       informed     the       defendants    that         they   were

infringing on such use, and requested that such infringement

activities cease.            B & J also unsuccessfully sought to buy the




is federally        registered       or   otherwise         protected       under     federal
law.
       2
        A domain name is “any alphanumeric designation which is
registered with or assigned by any domain name registrar, domain
name registry, or other domain name registration authority as
part of an electronic address on the Internet.”       15 U.S.C.
§ 1127.
       3
         When    a    consumer    accesses   the    website   of
“WashingtonTalentAgency.com,” limited information regarding the
services offered by Albrecht in the greater Washington, D.C.
area is made available.    The website instructs such a consumer
to “Click Here to Enter!” and provides a hyperlink to Albrecht’s
“USATalentAgency.com” website, which contains more extensive
information concerning Albrecht’s services.



                                               3
domain      name    “WashingtonTalentAgency.com”                 from      the    defendants.

When B & J’s proposals were rejected, this lawsuit followed.

       On May 15, 2006, B & J filed its complaint for injunctive

and    other   relief     in    the    District        of    Maryland,           alleging     two

claims against the defendants:                    trademark infringement, under

§ 43   of    the    Lanham     Act,    15    U.S.C.     § 1125(a)          (the    “trademark

claim”); and cybersquatting, pursuant to the Anticybersquatting

Consumer       Protection            Act,      15       U.S.C.          § 1125(d)           (the

“cybersquatting        claim”).             Pertinent       to      both    claims,      B & J

alleges that it has a valid and protectable trademark in the

name “Washington Talent Agency,” and that the defendants’ use of

the domain name “WashingtonTalentAgency.com” is likely to cause

confusion among consumers.                  On the cybersquatting claim, B & J

also alleges that the defendants acted in bad faith in securing

the “WashingtonTalentAgency.com” domain name.

       On    June    6,   2007,       following        more      than      six     months      of

discovery      proceedings,          the     parties        filed     cross-motions           for

summary      judgment.           In    their        submission,            the     defendants

maintained that they were entitled to summary judgment, under

Rule 56 of the Federal Rules of Civil Procedure, on both the

trademark claim and the cybersquatting claim.                                They asserted

that “Washington Talent Agency” was not entitled to trademark

protection,         because     it    was     either         a   generic          term   or     a

descriptive term that had not acquired secondary meaning.                                      On

                                              4
the cybersquatting claim, the defendants asserted that B & J had

failed to show either secondary meaning or bad faith.                         B & J, on

the    other    hand,     sought    summary      judgment     on    its   own   behalf,

maintaining that there was no genuine issue of material fact and

that it was entitled to prevail on its claims as a matter of

law.

       On August 22, 2007, the district court heard argument on

the    cross-motions       for     summary       judgment.         At   the   hearing’s

conclusion, as reflected in its Order, the court stated that it

would award summary judgment to the defendants and deny B & J’s

cross-request       for    such     relief.        See   B & J      Enters.,    Ltd    v.

Giordano, No. 8:06-cv-01235 (D. Md. Aug. 22, 2007) (the “Summary

Judgment Order”). 4        The court deferred entering a final judgment,

however,       authorizing       B & J    to     seek    reconsideration        of    the

Summary Judgment Order.              Such reconsideration was subject to

multiple       conditions:         that   B & J     request    reconsideration         by

October 22, 2007; that B & J pay part of the defendants’ legal

fees; and that B & J “submit evidence adequate to establish the

existence of a genuine issue of material fact preventing summary

judgment for Defendants.”            Id. at 1.




       4
       The Summary Judgment Order is found at J.A. 242-43.
(Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)



                                             5
      On October 17, 2007, B & J moved for reconsideration of the

Summary Judgment Order.             In support thereof, it submitted seven

letters, containing statements and opinions concerning B & J and

its business reputation in the greater Washington, D.C. area

(the “Letters”).            In response, the defendants moved to strike

the Letters because they were unsworn and unauthenticated, and

thus could not be considered on the summary judgment issue.

        On   December       6,   2007,     the    district      court    granted      the

defendants’ motion to strike, directing that the Letters “shall

not   be     part   of   the     record   in     regard   to   Plaintiff’s      pending

Motion for Reconsideration.”                B & J Enters., Ltd v. Giordano,

No. 8:06-cv-01235, slip op. at 3 (D. Md. Dec. 6, 2007).                           In so

ruling,      the    court    reflected      frustration        with    B & J    and   its

counsel, observing that it was “unfortunate” that, “in view of

the history of this case in which Plaintiff’s counsel have been

given    one   final     chance     to    present    evidence     to    avoid   summary

judgment, they would not have taken the minimal step of having

the authors of the letters add thereto an endorsement signed

under penalties of perjury.”                   Id. at 2.        Although the court

recognized that “it is highly unlikely that the resolution of

the instant motion will turn upon the presence or absence” of

the Letters, it declined to consider them for summary judgment

purposes.      Id. at 2-3.



                                            6
        On December 20, 2007, two months after the reconsideration

deadline       had    expired,      B & J   supplemented      its    reconsideration

request, filing six affidavits attesting to the authenticity of

the Letters (the “Affidavits”).                 On March 11, 2008, the district

court       filed    an   opinion    denying     reconsideration,        striking   the

Affidavits, and explaining its views on the summary judgment

issue.        See B & J Enters., Ltd v. Giordano, No. 8:06-cv-01235

(D. Md. Mar. 11, 2008) (the “Reconsideration Opinion”). 5                           In

particular, the court explained that it had “excluded from the

summary       judgment      record     certain     ‘evidence’”       —    namely    the

Affidavits filed on December 20, 2007 — because they were “not

submitted by Plaintiff’s counsel until well after the motion

filing deadline and, indeed, even after the instant motion had

been briefed.”            Id. at 11.    The court also stated that, even if

it had considered the Affidavits, its disposition of the summary

judgment issue would be unaffected.

        In    awarding       summary    judgment       to   the     defendants,     the

district       court      concluded    that      the   name   “Washington      Talent

Agency” was a geographically descriptive term, and thus only

protected from use if it had acquired a secondary meaning.                          As

the court explained, if the name “Washington Talent Agency” had

acquired secondary meaning — thus providing B & J a protectable

        5
            The Reconsideration Opinion is found at J.A. 287-99.



                                            7
trademark — “[t]here is no doubt . . . Defendants would have

infringed the trademark, would have to cease use of the domain

name   ‘WashintonTalentAgency.com,’                  and    possibly      be   subject   to

liability under the [cybersquatting statute].”                            Reconsideration

Opinion     4-5.      The    court      emphasized,         however,   that     “there   is

insufficient evidence from which a reasonable fact finder could

find that the words ‘Washington talent agency’ had acquired a

secondary     meaning       so    as    to   entitle       [B & J]   to    a   protectable

trademark for the name Washington Talent Agency.”                              Id. at 11.

Having decided that B & J did not possess a trademark in the

name   “Washington       Talent        Agency,”      the    court    rejected     both    of

B & J’s     claims.         The    court      thus     denied    the      reconsideration

request, awarded summary judgment to the defendants, and denied

such relief to B & J.

       On March 11, 2008, B & J filed its timely notice of appeal

in this case.           We possess jurisdiction pursuant to 28 U.S.C.

§ 1291.



                                              II.

       In   seeking     relief         on    appeal,    B & J    maintains       that    the

district court erred in two respects.                      First, B & J asserts that

the court erred in excluding the Letters and Affidavits from

consideration      on    the      summary      judgment      issue.        Second,   B & J

contends that, in any event, the court erred in awarding summary

                                               8
judgment       to   the    defendants    and      in       failing    to    award    summary

judgment to B & J.          We assess these contentions in turn.

                                             A.

       B & J    first      challenges    the      district        court’s     decision    to

exclude the Letters and Affidavits from the summary judgment

record.     On December 6, 2007, the court struck the Letters, thus

declining to consider them in the summary judgment proceedings.

In   its   Reconsideration        Opinion,        the       court    also    excluded    the

Affidavits,         explaining    that       they          were     “not     submitted    by

Plaintiff’s counsel until well after the motion filing deadline

and, indeed, even after the instant motion had been briefed.”

Reconsideration Opinion 11.

       We review for abuse of discretion a trial court’s exclusion

of evidence from a summary judgment record.                          See Supermarket of

Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119, 126

(4th    Cir.    1995).       Although    a    district         court       possesses   broad

discretion      on   whether     to    consider        a    tardy    filing     of   summary

judgment materials, see Fed. R. Civ. P. 6, a late filing should

be authorized “only if cause or excusable neglect has been shown

by the party failing to comply with the time provisions,” Orsi

v. Kirkwood, 999 F.2d 86, 91 (4th Cir. 1993).

       Put simply, the district court did not abuse its discretion

in     excluding     the     Letters    and       Affidavits         from     the    summary

judgment record.            First, B & J was not entitled to have the

                                             9
Letters considered on the summary judgment issue because they

were unsworn and unauthenticated.                In order to be considered on

summary    judgment,     “‘documents        must      be    authenticated      by    and

attached to an affidavit that meets the requirements of Rule

56(e).’”     Orsi, 999 F.2d at 92 (quoting 10A Charles A. Wright et

al., Federal Practice and Procedure § 2722, at 58-60 (1983 &

Supp. 1993)).       Second, the court was within its discretion in

striking    the    Affidavits.           The    Affidavits        were    untimely    —

submitted two months after the court’s deadline, when B & J’s

reconsideration      request       was     already         ripe   for    disposition.

Furthermore,       the    Affidavits           were     presented        without     any

explanation for the delay or an assertion of excusable neglect.

In such circumstances, we must reject B & J’s contention that

the court erred in striking the Letters and Affidavits.

                                          B.

     We next assess B & J’s second contention, that the district

court erred — even in the absence of the Letters and Affidavits

—   in    making   the   summary    judgment          rulings.      In    a   trademark

dispute, we review de novo a district court’s award of summary

judgment.     Carefirst of Md., Inc. v. First Care, P.C., 434 F.3d

263, 267 (4th Cir. 2006).                Such an award is only appropriate

when the summary judgment record shows “that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.”                        Fed. R. Civ. P.

                                          10
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).    In evaluating a summary judgment issue, the evidence of

record    must    be   viewed   in    the    light     most    favorable         to   the

nonmoving party.        See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986).         A mere scintilla of proof, however, will not

bar a summary judgment award; the question is “not whether there

is literally no evidence, but whether there is any upon which a

jury could properly proceed to find a verdict for the party

producing it.”         Id. at 251 (internal quotation marks omitted).

Where    “the    nonmoving   party     has    failed    to     make    a   sufficient

showing on an essential element of [its] case, with respect to

which    [it]    has   the   burden    of    proof,”     the    moving       party     is

entitled to summary judgment.           Celotex Corp., 477 U.S. at 323. 6

                                        1.

    In     this    proceeding,       B & J    seeks    relief     on       two   claims

against    the     defendants:          the     trademark        claim       and      the

cybersquatting claim.         Section 43(a) of the Lanham Act protects

an unregistered mark from trademark infringement.                     See 15 U.S.C.

§ 1125(a) (creating action in favor of person damaged, or likely


     6
       Cross-motions for summary judgment are reviewed under the
same standard, and we therefore consider “each motion separately
on its own merits to determine whether either of the parties
deserves judgment as a matter of law.”    Rossignol v. Voorhaar,
316 F.3d 516, 523 (4th Cir. 2003) (internal quotation marks
omitted).



                                        11
to be damaged, by the use in commerce of “any word, term, name,

symbol, or device, or any combination thereof” which “is likely

to cause confusion”). 7                  In order to maintain a cause of action

for trademark infringement, a plaintiff must show (1) that “it

has     a       valid,       protectible         trademark”;             and    (2)    “that     the

defendant’s use of a colorable imitation of the trademark is

likely          to    cause       confusion         among         consumers.”          Lone     Star

Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922,

930        (4th       Cir.       1995);        see        also      15      U.S.C.      § 1125(a).

Additionally, to establish a prima facie case of cybersquatting,

a     plaintiff           must    prove       (1)         that     it     possesses     a     valid,

protectable           trademark;          (2)       that     the        defendant      registered,

trafficked           in,   or     used    a    domain       name     that      is   “identical    or

confusingly similar” to the plaintiff’s trademark; and (3) that

the defendant acted “with the bad faith intent to profit from

the good will associated with the trademark.”                                       Retail Servs.

Inc.       v.    Freebies        Publ’g,      364     F.3d       535,    549    (4th   Cir.    2004)

(internal quotation marks omitted).

       Thus,         in    order     to       prevail        on    either       a   trademark     or

cybersquatting             claim,        a      plaintiff          must     “first      and     most

       7
        In contrast to an unregistered mark, a federally
registered trademark is protected from infringement under § 32
of the Lanham Act.   See 15 U.S.C. § 1114(1).   However, only a
mark characterized as “distinctive” may be federally registered
as a trademark. See id. § 1052(f).



                                                     12
fundamentally prove that it has a valid and protectable mark.”

U.S. Search, LLC v. US Search.com Inc., 300 F.3d 517, 523 (4th

Cir. 2002) (internal quotation marks omitted); see also Retail

Servs. Inc., 364 F.3d at 549 (explaining that “a prerequisite

for   bringing        a    [cybersquatting           claim]     is        establishing      the

existence of a valid trademark”).                     This element — a valid and

protectable mark — is therefore essential to each of B & J’s

claims.     If B & J failed to make a sufficient showing on this

element, the summary judgment award in favor of the defendants

was appropriate.           See Celotex Corp., 477 U.S. at 323.

      Whether     a       mark   is    protected      under    federal        law    depends,

first of all, upon its classification — either as “generic,”

“descriptive,” “suggestive,” or “arbitrary/fanciful.”                                See U.S.

Search,    LLC,   300       F.3d      at     523.     Accordingly,          the    degree    of

protection    accorded           to   a    mark     hinges    on   the      extent    of    its

distinctiveness.            See id.          In this case, the Reconsideration

Opinion    concluded         that      the    name    “Washington           Talent    Agency”

should be classified as a “descriptive mark.”                             And, the parties

do not contest this point on appeal.                          As a descriptive mark,

however, the name “Washington Talent Agency” is eligible for

legal protection only if it has been shown to have acquired a

“secondary      meaning”         in    the    eyes    of     the     public.         See    id.

Secondary    meaning         is       generally      accepted        as     “the    consuming

public’s    understanding             that    the   mark,     when    used     in    context,

                                               13
refers, not to what the descriptive word ordinarily describes,

but   to     the     particular      business        that       the    mark     is       meant    to

identify.”          Perini Corp. v. Perini Const., Inc., 915 F.2d 121,

125   (4th        Cir.   1990).      Furthermore,           a    trademark         infringement

plaintiff         must   show   that      its    descriptive           mark    acquired         such

secondary meaning (1) in the defendant’s trade area, and (2)

prior to the time the defendant entered the market.                                  See id. at

125-26.

        In our Perini decision, we identified and spelled out six

factors that are relevant to the resolution of the secondary

meaning issue.            See 915 F.2d at 125.                   Each of these factors

should       be    assessed     in   a    secondary         meaning          analysis:           (1)

plaintiff’s         advertising        expenditures;             (2)        consumer      studies

linking the mark to a source; (3) the plaintiff’s record of

sales success; (4) unsolicited media coverage of the plaintiff’s

business;         (5)    attempts    to    plagiarize           the    mark;       and    (6)    the

length and exclusivity of the plaintiff’s use of the mark.                                       See

id.; see also U.S. Search, LLC, 300 F.3d at 525.                                     In Perini,

Judge       Murnaghan      explained      that       none   of        the    six    factors       is

necessarily determinative of secondary meaning, and all of them

need not be favorable for the plaintiff to prevail.                                       See 915

F.2d at 125-26.

        A    trademark      plaintiff,          seeking         to    establish          secondary

meaning, faces a “rigorous evidentiary standard.”                                  U.S. Search,

                                                14
LLC, 300 F.3d at 525.                 And, although a secondary meaning issue

is   generally       for     the      trier    of    fact,    when     the    plaintiff’s

evidence is sufficiently lacking, a trial court is entitled to

conclude      on    summary       judgment     that    its    mark     lacks    secondary

meaning.      See id. at 525-26.              In order to so rule, however, the

court must view the facts in the light most favorable to the

nonmoving party, and then reasonably conclude that a jury could

not find for the plaintiff.                  See id. at 522, 525-26. As we have

explained, if a plaintiff “cannot clear the [secondary meaning]

hurdle; that is, it cannot show that its mark . . . is entitled

to service mark protection,” an award of summary judgment to the

defendant is warranted.               See id. at 523.

                                              2.

     In     order      to    establish        secondary       meaning    in    the    name

“Washington Talent Agency,” B & J was obliged to show that “a

substantial number of present or prospective customers,” when

hearing    or      reading       of   the    “Washington      Talent    Agency,”     would

associate     the     name       specifically       with   B & J’s     business.       See

Perini,    915     F.2d     at    125    (internal     quotation       marks    omitted).

B & J   was     also    obliged         to   show   that     such    secondary   meaning

existed in Albrecht’s trade area — the greater Washington, D.C.

area — prior to January 2005 (when Albrecht entered the market).

In evaluating the secondary meaning issue, the Reconsideration

Opinion assessed each of the six Perini factors, analyzed the

                                              15
relevant evidence, and concluded that “[t]he bottom line is that

on   the     record,       there    is    insufficient     evidence        from   which    a

reasonable fact finder could find that the words ‘Washington

talent agency’ had acquired a secondary meaning so as to entitle

Plaintiff to a protectable trademark for the name Washington

Talent Agency.”            Reconsideration Opinion 11.

       Of     the        six     Perini     factors,     the    first       (plaintiff’s

advertising             expenditures)       and    the   last       (the    length     and

exclusivity of the plaintiff’s use of the mark) appear to be

most supportive of B & J’s secondary meaning contention.                                  We

will thus first separately evaluate those Perini factors, and

then       turn    to    the    other    four.     Because     no   single    factor      is

determinative, after considering each factor separately, we will

assess whether — even evaluated cumulatively — B & J’s evidence

is sufficient to satisfy the secondary meaning requirement.

                                              a.

       On     the        first     Perini    factor      (plaintiff’s        advertising

expenditures),            the    Reconsideration     Opinion    related      that    B & J

had presented the following evidence:

       •          “[T]ax returns for 17 years with deductions for
                  advertising”; 8
       8
       B & J presented its income tax returns for most of the
years between 1970 and 2004.     Those returns reflected annual
deductions for advertising of as much as $67,000.    In the five
years between 2000 and 2004, such advertising deductions were in
the sixty-thousand-dollar range.


                                              16
       •         “Profit and Loss reports for 9 years with line
                 items for advertising expenditures”;

       •         “16 proofs of advertisements”; and

       •         “A letter from the Advertising Manager of The
                 Washingtonian   stating   that Washington Talent
                 Agency has run an advertisement in each issue of
                 the Magazine since 2000.”

Reconsideration Opinion 7.                    The district court deemed B & J’s

showing on advertising to be insufficient, however, explaining

that       the    evidence       was   “by     no    means   adequate     to   establish

significant expenditures advertising the trademark ‘Washington

Talent Agency.’”           Id.

       In reaching this conclusion on the advertising factor, the

district         court   observed       that    the    evidence   produced     by   B & J

showed       that    its     advertising        expenditures      had   been   made    on

“business promotions of some kind,” rather than “for advertising

that would tend to promote a secondary meaning” in the name

“Washington Talent Agency.”                    Reconsideration Opinion 7.             The

court explained this observation further, stating that, even if

it     assumed       “all     of       these       expenditures    were    devoted      to

advertisements using the name ‘Washington Talent Agency,’” B & J

had    failed       to     show    that      its    advertising    expenditures       were

effective with consumers in the greater Washington, D.C. area,

causing them to associate “Washington Talent Agency” with B & J.

Id. at 8.         Notably, the court concluded that, although B & J had


                                               17
presented some advertising proofs as evidence — alleging that

such advertising had appeared in various print media over the

years     —    it    failed     to     show       the    locations      and    dates      of   any

publications, and had otherwise failed to present any actual

advertisements.         Id. 9

        We must recognize, in the context of this issue, that B & J

made substantial expenditures of advertising funds over a period

of several years.          Nevertheless, we also agree with the district

court that large advertising or promotional expenditures, while

relevant to the issue of secondary meaning, are not dispositive.

See Am. Footwear Corp. v. Gen. Footwear Co., 609 F.2d 655, 663

(2d   Cir.     1979);    see         also       E.T.    Browne   Drug    Co.    v.     Cococare

Prods., Inc., 538 F.3d 185, 199 (3d Cir. 2008) (describing first

factor    as    “extent         of    .     .    .     advertising      leading      to    buyer

association”).          Absent a showing that such expenditures “were

effective       in    causing         the       relevant     group      of     consumers       to

associate the mark with itself,” secondary meaning cannot be

established.         FM 103.1, Inc. v. Universal Broad. of N.Y., Inc.,


      9
        B & J   introduced  evidence   of   only  one  published
advertisement.     It was a four-line, text-only classified
advertisement (approximately three inches wide and an inch high)
in The Washingtonian magazine that had appeared on a monthly
basis for about five years.    The district court concluded that
this advertisement, viewed in the context of the surrounding
ads, had only used the name “Washington Talent Agency” in a
generic — rather than distinct — form.



                                                  18
929 F. Supp. 187, 196 (D.N.J. 1996);                          see also Dick’s Sporting

Goods, Inc. v. Dick’s Clothing & Sporting Goods, Inc., No. 98-

1653,       1999    WL     639165,       at     *7     (4th     Cir.    Aug.      20,        1999)

(unpublished) (citing FM 103.1, Inc., 929 F. Supp. 187).                                        On

this     record,      B & J          failed    to     present    the    context         of     its

advertising expenditures, and, absent such a showing, a jury

would make a leap of faith to conclude that the name “Washington

Talent      Agency”      had     gained       secondary      meaning    in     the    relevant

geographical area.

       Notably, B & J’s advertising evidence, viewed in the proper

light,      shows     only      that     its    advertising       funds      were     expended

generally;         they        are     not     shown    as      advertising          the     name

“Washington Talent Agency” in the relevant area.                               There was no

evidence of the quality, type, location, or duration of such

advertising.             Put    simply,       B & J    should    have     shown      that     the

advertising occurred in the greater Washington D.C. area — a

connection essential to satisfying the first Perini factor.                                   See

Perini, 915 F.2d at 126 (concluding court erred by failing “to

connect the plaintiff’s nationwide statistics to the defendant’s

trade       area”). 10         Thus,     although       advertising       is    potentially



       10
        Notably, the advertisement proofs fail to remedy the
evidentiary deficiency on the first Perini factor.     With no
showing of location, duration, and frequency of advertisements,
we are unable to conclude that customers in the greater
(Continued)
                                                19
B & J’s   best    showing        on     a    Perini     factor,       we    are    unable     to

conclude that B & J has satisfied it.

                                              b.

     With     respect      to    B & J’s      other      potentially         strong    Perini

factor    —     the   sixth        (the       length      and    exclusivity          of     the

plaintiff’s     use   of     the      mark)    —    the    name       “Washington      Talent

Agency”   had    been    used      in       B & J’s     business       for    almost       forty

years.    The district court nevertheless concluded that such a

period of use was alone insufficient to warrant a ruling in

favor of B & J, because it had failed to show the exclusivity of

such use in the relevant market.                        See Reconsideration Opinion

10-11.    We agree — evidence of length of use, absent a showing

of   exclusivity,       is      inadequate         to   satisfy       the    sixth     Perini

factor.       See U.S. Search, LCC, 300 F.3d at 526 n.12 (“Even

assuming [plaintiff] has used ‘U.S. Search’ continuously since

1982 . . . length of time alone is insufficient to establish

secondary meaning.”); see also 815 Tonawanda Street Corp. v.

Fay’s Drug Co., 842 F.2d 643, 648 (2d Cir. 1988) (concluding no

secondary meaning despite evidence of “long and exclusive use”

of mark).




Washington, D.C. area would                    associate        the    name       “Washington
Talent Agency” with B & J.



                                              20
                                         c.

       With     respect    to    the   other       four    Perini      factors,     the

Reconsideration Opinion examined each of them and concluded that

B & J’s       evidence    was    inadequate.            Under   our    precedent,    a

particular       factor    is    not   satisfied         when   some    evidence    is

produced, if that evidence is minimal or limited.                           See U.S.

Search, LLC, 300 F.3d at 526 (concluding Perini factors one and

three were not satisfied despite evidence of minimal advertising

expenditures and limited sales success); see also Laureyssens v.

Idea Group, Inc., 964 F.2d 131, 136 (2d Cir. 1992) (concluding

no secondary meaning in light of weak sales, low advertising

expenditures and promotions, minimal unsolicited media coverage,

and brief period of exclusive use).

       Importantly,       with   respect      to   the     second      Perini   factor

(consumer studies linking the mark to a source), there was a

notable absence of any such studies linking the name “Washington

Talent    Agency”    to    B & J.      The    absence      of   those     studies   is

striking, because such evidence is “generally thought to be the

most     direct    and    persuasive       way     of     establishing      secondary

meaning.”       U.S. Search, LLC, 300 F.3d at 526 n.13.                 As a result,

B & J failed on the second Perini factor.

       We agree with the Reconsideration Opinion that the third

Perini factor (the plaintiff’s record of sales success) was not

satisfied       because    the    supporting        evidence     was      incomplete.

                                         21
Although    B & J   presented      some   evidence       concerning        its    sales

history, it did not show sales success, if any, in the greater

Washington, D.C. area.       See Dick’s Sporting Goods, Inc., 1999 WL

639165, at *7 (comparing plaintiff’s gross sales to market’s

total sales volume).

      In disposing of the fourth Perini factor (unsolicited media

coverage    of    the   plaintiff’s       business),        the     Reconsideration

Opinion    characterized    it     as   “[q]uite      telling[]”       that,      after

almost    forty   years,   B & J    had   forecast       evidence     of    only      one

instance    of    unsolicited    media       coverage,      a     reference      in   an

article in a high school newspaper.                 Reconsideration Opinion 9-

10.   Such media exposure was thus “an ‘isolated incident’ from

which no reasonable jury could find ‘widespread recognition in

the minds of the consuming public, as alleged.’”                           Id. at 10

(quoting Dick’s Sporting Goods, Inc., 1999 WL 639165, at *8).

Finally, on the fifth Perini factor (attempts to plagiarize the

mark), B & J’s President acknowledged that he was unaware of any

infringement or plagiarism prior to the defendants’ activities.

See id.    We also agree with these assessments.

                                        d.

      In making a cumulative de novo assessment of the Perini

factors — again in the light most favorable to B & J — the

evidence    shows   that   B & J    used      the    name       “Washington      Talent

Agency” in the greater Washington, D.C. area for almost forty

                                        22
years, and that it expended substantial money on advertising.

Although    such    evidence        is    relevant       to     establishing         secondary

meaning, it is insufficient to satisfy B & J’s burden in this

case.      According      every     favorable           inference       to    B & J      on   the

Perini     factors,      it   has    nevertheless              failed    on    the       crucial

question:          whether     “a        substantial           number    of     present        or

prospective        customers,”           when        hearing     or     reading       of      the

“Washington        Talent      Agency,”              would      associate          the        name

specifically with B & J’s business.                          Perini, 915 F.2d at 125

(internal quotation marks omitted); see also Anderson, 477 U.S.

at 251 (requiring more than a scintilla of proof to preclude

award of summary judgment); U.S. Search, LCC, 300 F.3d at 526

(explaining    that      despite     evidence          of    advertising       expenditures

and sales success, summary judgment was appropriate). 11                                 Because

B & J     failed    to   establish         secondary         meaning     —    an     essential

element on which it has the burden of proof — the court properly

awarded summary judgment to the defendants on each of B & J’s



     11
        B & J’s final contention, that the district court should
have accorded evidentiary weight to the PTO’s publication of the
“Washington Talent Agency” mark for opposition, see supra note
1, is also without merit.     Although the PTO’s issuance of a
certificate of registration might provide a registrant with,
inter alia, prima facie evidence of the validity of a mark, see
U.S. Search, LCC, 300 F.3d at 524, B & J has provided no support
for the legal proposition that a PTO publication is entitled to
similar weight.



                                                23
claims,    and   also   properly   denied   B & J’s   summary   judgment

request.



                                   III.

     Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                                AFFIRMED




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