9th Cir. Model Jury Instr. (Civil) 15.9

[Describe plaintiff’s alleged trademark] is not registered. Unregistered trademarks can be valid and provide the trademark owner with the exclusive right to use that mark. Instruction [insert number of instruction regarding Trademark Elements and Burden of Proof, e.g., 15.6] requires the plaintiff to prove by a preponderance of the evidence that [describe plaintiff’s alleged trademark] is valid. A valid trademark is a [word, name, symbol, device, or any combination of these items] that is either:

(1) inherently distinctive; or

(2) descriptive but has acquired a secondary meaning.

[Only a valid trademark can be infringed.] [Only if you determine plaintiff proved by a preponderance of the evidence that the [describe plaintiff [name]’s alleged trademark] is a valid trademark should you consider whether plaintiff [name] owns it or whether defendant [name]’s actions infringed it.]

Only if you determine that [describe plaintiff [name]’s alleged trademark] is not inherently distinctive should you consider whether it is descriptive but became distinctive through the development of secondary meaning, as I will direct in Instruction [insert number of instruction regarding Distinctiveness and Secondary Meaning, e.g., 15.11].