Don’t Lose Your Trademark to Genericide

July 8, 2014 — Leave a comment

Once upon a time if you sold Escalators or Aspirin you had to call your product something else, perhaps a moving staircase or pain reliever. Today, however, anyone in the U.S. can use those words to describe their products because the prior owners lost their rights due to Genericide.

What is Genericide

We’ve discussed the topic of descriptiveness previously and mentioned that descriptive terms are hard to protect (you have to prove a secondary meaning, which can be hard to do). We also mentioned that you can’t protect a generic term because a generic term cannot serve as a source identifier. In a similar way, when a trademark becomes so well known and associated with a type of product or service rather than a specific product or service, the mark owner loses the ability to protect their mark. We call that Genericide.

Escalator and Other Examples

For example, the Otis Elevator Company created the word “Escalator” to describe their moving staircase. The term eventually became so associated with moving staircases that the company lost their ability to protect the term. This has happened with other brands as well such as Aspirin, Murphy Bed, and even Dry Ice (a list of other marks can be found here).

A Current Example – “Google”

A great example for our modern era is Google. Of course “Google” is the name of Google, Inc., the search engine company. But you’ve also probably heard people say “oh, just google it.” What they really mean is “search the Internet” but it is easier to say “google it.” As a result, some people argue that “Google” is now a generic word that means to search the Internet. Of course Goolge, Inc. would say otherwise and it is unlikely a court will rule that “Google” is generic quite yet, but it may happen some day.

How to Prevent Genericide of Your Mark

This might leave you wondering what you should do to protect your mark. Here are a few tips.

First, don’t use your mark as a verb. For example, if you were Google, Inc., you would always say, “use Google® to search the Internet.”

Second, try to use the TM symbol for unregistered marks or the ® symbol for registered marks whenever possible. You don’t have to use them in every single circumstance, but you should use them common enough that readers will realize that your mark is a trademark and not a verb.

Third, you should police your mark. If you find someone infringing your mark or using it in a generic way, be sure to request that person stop the infringement or change the way they are using the mark.

Lastly, be sure to register your mark with the U.S. Patent and Trademark Office. And if you want a trademark attorney to help you without breaking the bank, check out our online trademark service at www.MightyMarks.com!

Image: Thinkstock/shansekala

*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.

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