How Does A Trademark Become Generic?
The popularity of a trademark could end up being its downfall. To protect a trademark and encourage its success at the same time, the trademark owner should take steps to maintain the mark’s trade distinctiveness.
What makes a name a trademark?
A trademark is a word, phrase, logo or other symbol that identifies the source of a good or service. If a product’s name is a mere description of what is in the package, the name is not a trademark. The name is a trademark if it indicates to the consumer who made the product or where it came from.
How does a trademark become generic?
Once a trademark is registered with the US Patent and Trademark Office (USPTO), this is not necessarily the end of the story. The trademark owner should monitor the usage of the mark to ensure that it does not become a generic term.
A trademark typically becomes generic when, in the mind of the consumer, it stops referring to the source of the product and starts referring to the product itself. An example of this is aspirin. “Aspirin” used to be the brand name of a product; when consumers saw the name, most of them knew that it came from only one manufacturer. This changed over the years, however, and eventually “aspirin” called to mind the pills themselves rather than the company that made them.
“Genericide” (the transformation of a trademark into a generic term) has several causes. When a product is the first of its kind and consumers do not have a generic term already in place for it, the trademark can come to signify the product rather than the specific manufacturer. Sometimes, when the public begins to call a product by a trademark name, the original owner of the trademark fails to attempt to stop the usage. Other times, the product with the trademark name is simply so successful and becomes so ubiquitous that the public calls all such products by the trademark name.
What can a business do to avoid genericide?
Businesses can take proactive steps to avoid losing their trademarks. A name that does more than simply describe the product is a good start. Giving a product a name that includes both a trademark (like Vaseline®) and a product description (like “petroleum jelly”) can distinguish the trademark from the generic description. Business also should watch for generic-type uses of the trademark name and formally object to them. Advertising that distinguishes the trademarked product from other similar products is a positive step, too.
Why would a court allow a name to lose its trademark protection?
When a word becomes a mere description of a product and not an indication of its source, it becomes unfair to allow only one manufacturer or seller use the term. Allowing only one seller to use the word on a product would cripple the ability of other entrepreneurs to market and sell their goods to consumers — and the ability of consumers to identify the product.
What are some products whose generic descriptions were once trademark names?
Aspirin, Cellophane, Thermos, Zipper and Escalator are former trademarks that are now generic names for products. With vigilance and the assistance of an attorney, you can work to avoid losing your trademarks to “genericide.”
Copyright © 2008 FindLaw, a Thomson Reuters business
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.
