concurring:
I concur in the majority’s opinion because I agree that a foreign owner of a supposedly famous or well-known foreign trademark must show a higher level of “fame” or recognition than that required to establish secondary meaning. Ultimately, the standard for famous or well-known marks is an intermediate one. To enjoy extraterritorial trademark protection, the owner of a foreign trademark need not show the level of recognition necessary to receive nation-wide protection against trademark dilution. On the other hand, the foreign trademark owner who does not use a mark in the United States must show more than the level of recognition that is necessary in a domestic trademark infringement case.
Nonetheless, I write separately to express my view that the evidence that Plaintiffs have presented thus far is insufficient as a matter of law to establish that their mark is famous or well-known. The survey population and the survey’s results establish little more than the fact that Plaintiffs’ customers are familiar with Plaintiffs’ stores. In an abundance of caution, the majority does not intimate whether that evidence is sufficient to warrant a grant of summary judgment in Plaintiffs’ favor on the issue of the famous mark exception. I would go beyond intimation and hold directly that Plaintiffs’ evidence *1107is insufficient to support a grant of summary judgment in its favor. I would further hold that, unless the district court entertains a renewed motion for summary judgment on a considerably expanded record, this case should proceed to trial.
The district court, relying éntirely on survey evidence, concluded that Plaintiffs’ trademark had acquired secondary meaning and was thus entitled to protection from domestic users.1 The survey population consisted of only 78 people in San Diego County who were “Spanish-speaking, and had recently purchased:-Mexican-style food at a supermarket or other food store.” Grupo Gigante S.A. de C.V. v. Dallo & Co., Inc., 119 F.Supp.2d 1083, 1093 (C.D.Cal.2000). Twenty-four respondents from that populátion “(1) had recently shopped at a Gigante store in México; (2) believed that the Gigante name- was affiliated with an entity that had at least one store located in-Mexico; or (3) were aware of a Gigante supermarket located in Mexico.” Id. However, the survey was conducted in 2000, nine years after Defendants first began using the Gigante name in the United States. When testing for awareness of the Gigante mark before Defendants’ entry into the San Diego market in 1991, the awareness level dropped to 20 to 22 percent of the respondents. Id. That is, the district court based its conclusion that Plaintiffs’ mark was well known on a survey that turned up just seventeen people who had heard of Gigante before 1991.
That evidence is insufficient in two important respects. First, the survey result is highly questionable in view of its narrowly defined survey population. Plaintiffs’ own description of their stores makes clear that the goods sold are little different from those available in any large retail grocery store: “Product offerings in the Gigante stores generally include a complete selection of-perishable and non-perishable foods and a wide selection of general-merchandise, as well as clothing and fashion items.” Further, Plaintiffs admit in their briefs that the clientele of their Mexican stores includes “both Hispanic and non-Hispanic” customers. Consequently; nothing about either the nature of the goods sold by Plaintiffs or its customer base warrants limiting the relevant public to Mexican-Americans.
We have rejected similar attempts to limit the relevant sector of the public. For instance, -in Japan Telecom, Inc. v. Japan Telecom America Inc., 287 F.3d 866, 875 (9th Cir.2002), a trademark dispute between two providers of telecommunications services, - the plaintiff advertised only to “members of the Japanese and Japanese American business communities in Southern California.” Nonetheless, we concluded that “the relevant buying public consists at least of buyers of telephone and network installation services in that region.” Id. Thus, we emphasized the nature of the service provided, rather than the composition of the market to which the plaintiff actively targeted its services.
Because Plaintiffs sell widely-available, non-specialized goods to the general public, it is uninformative to focus exclusively on Mexican-Americans living in San Diego County. The district court’s reliance on Plaintiffs’ survey is especially problematic because its population was limited to Mexican-Americans who had - recently, purchased Mexican-style food at a supermar*1108ket or grocery store. That survey is only very slightly more informative than the study whose probative value we dismissed entirely in Avery Dennison Corp. v. Sumpton, 189 F.3d 868 (9th Cir.1999), because it focused exclusively on the plaintiffs existing customers: “Avery Denni-son’s marketing reports are comparable to a survey we discussed in Anti-Monopoly, Inc. v. General Mills Fun Group, Inc., 684 F.2d 1316 (9th Cir.1982), proving only the near tautology that consumers already acquainted with Avery and Avery Dennison products are familiar with Avery Dennison.” 189 F.3d at 879.
Because a conclusion that Plaintiffs have a protectable interest would prohibit Defendants from selling groceries under that mark to any residents of San Diego County — not just to Mexican-Americans — it makes little sense to define the relevant public so narrowly. Comprised of all grocery shoppers, the “relevant sector of the public” in this case is the very antithesis of a specialized market; because everyone eats, the relevant sector of the public consists of all residents of San Diego County, without qualification.
Second, in view of the standard we announce today, I do not believe that a showing that 20 to 22 percent of the relevant market is familiar with the foreign mark establishes that a “significant” or “substantial” percentage of that market is familiar with the foreign mark. On that ground alone, I would conclude that Plaintiffs have failed, so far, to show that their mark is famous or well-known.
In terms of the level of fame, trademark dilution cases often speak of a “significant percentage of the defendant’s market.” Mead Data Cent., Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1031 (2d Cir.1989). Discussing the level of recognition required to establish “niche fame,” McCarthy argues that “a mark should not be categorized as ‘famous’ unless it is known to more than 50 percent of the defendant’s potential customers.” 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 24:112, at 24-271 (4th ed.2002).
I would adopt a similar standard for the exception for famous or well-known foreign marks. When a foreign mark has not been used in the United States, I would require the owner of the foreign mark to show, through surveys and other evidence, that a majority of the defendant’s customers and potential customers, on aggregate, were familiar with the foreign mark when the defendant began its allegedly infringing use. Admittedly, that is a high standard. However, I believe that a stringent standard is required when conferring trademark protection to a mark that has never been, and perhaps never may be, used in this country. A conclusion that Plaintiffs’ mark is well-known in the relevant sector brings with it the right to oust Defendants from their own market, notwithstanding the fact that they have established priority of use. A bare showing of acquired distinctiveness should not suffice to invert the ordinary allocation of trademark rights.
Of course, I recognize that the doctrine of “niche fame” has received heavy, and in the context of domestic trademark law, deserved criticism. However, the niche fame cases may provide the district court with an instructive benchmark against which to measure an intermediate standard of fame.2
*1109-1113In summary, I agree with the majority’s conclusion that this case must be remanded and the evidence reevaluated under a heightened standard for the famous or well-known marks exception. However, I would hold directly that the evidence presented thus far does not meet that standard and thus does not suffice to warrant protection for Plaintiff’s mark. Finally, in determining whether a foreign mark has met the standard for famous or well-known foreign trademarks, I would look to precedent from this court and others addressing whether a mark has become famous in its market niche.
. Expert surveys can provide the most persuasive evidence of secondary meaning. Comm, for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 822 (9th Cir.1996). "However, survey data is not a requirement and secondary meaning can be, and often is, proven by circumstantial evidence.” 5 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 32:190, at 32-319 to 32-320 (4th ed.2002).
. There are no other cases that directly guide us here. Although international trademark law has recognized both the territoriality principle and the exception for famous and well-known marks since 1925, remarkably, no case addressed meaningfully the exception be*1109-1113fore the district court's decision below. Since that decision, only one case has confronted the issue. Empresa Cubana del Tabaca v. Culbro Corp., 70 U.S.P.Q.2d 1650, 2004 WL 602295 (S.D.N.Y.2004). Empresa Cubana adhered closely to the reasoning and conclusion of the district court in this case. Id. at 1676-77.