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Genericized trademark

  

Genericized trademark

A genericized trademark (Commonwealth English genericised trade mark or generic trade mark) is a trademark or brand name which has become synonymous with a particular type of product or service, to the extent that it often replaces the formal term for the product or service in colloquial usage.

One consequence of a trademark becoming generic is that the exclusive rights which may attach to the use or registration of the trademark can no longer be legally enforced. This process of genericide may result where the trademark owner does not maintain or enforce such rights (eg. by using the mark, or through infringement action). As the essential function of a trademark properly so-called is to uniquely identify the commercial source or origin of a product or service, a generic trademark is fundamentally a trademark which can no longer perform this function. Therefore a trademark may only be considered 'generic' at law if a court rules to this effect.

By comparison, what the general public may consider to be a genericized trademark is more difficult to reliably define, such that a very broad range of trademarks are often characterised as generic, which often leads to uncertainty as to what the term actually encompasses. Although many well known trademarks are often used in a generic manner, it does not necessarily follow that such trademarks have become 'genericized', particularly if the marks continue to fulfill the trademark function, and the mark owners maintain and enforce their rights.

As generic use of a trademark is often related to how well-known a trademark has become, some trademark owners hope that their marks will achieve genericity, or overlook a certain level of generic use, despite the inherent risk of generic use upon the maintenance of strong trademark rights.

Legal protection


Trademarks, unlike copyrights and patents, must be actively used and defended. A copyright or patent holder may (in some cases) simply "sit on" his creation and prevent its use by others, but a trademark owner claiming and even registering a trademark that fails to make active use of it, or fails to defend it against infringement may lose the exclusive right to use it. Further, if a court rules that a formerly trademarked term has become so successful in gaining mind share and becomes "generic" through common use (and so the average consumer doesn't realize it is a trademark), it may also be ruled unprotectable.

The genericization of a trademark sometimes results because the trademark is the name of something protected by other intellectual property rights, especially patents. Since the patent gives an inventor the exclusive right to manufacture a product for a period of time, consumers will only know that product by the inventor's trademark for the duration of the patent. When the patent expires, the inventor's competitors begin producing their own versions, but using the inventor's trademark to name their product because this is the name by which the general public identifies such items. (This is also the rationale for not protecting a generic trademark, because that would effectively allow the inventor to extend patent protection indefinitely.) One patent that lost its trademark status in this way is Thomas Edison's mimeograph.

Trademark owners should never use the trademark as a verb or noun, implying the word is generic. Likewise, using the trademark as a plural or possessive (i.e. a noun) will imply the trademark is generic (unless the mark itself is possessive or plural, e.g., "Friendly's" restaurants). If the trademark is associated with a patent, the patent holder may need to emphasize a descriptive term for the product that is distinguished from the trademark as a brand name.

Where a trademark is used generically a trademark owner may need to take special proactive measures in order to retain exclusive rights to the trademark. Xerox provides one successful example of a company which was able to prevent the genericide of its core trademark through an extensive marketing campaign advising consumers to "photocopy" instead of "Xeroxing" documents. Another common practice amongst trademark owners is to follow their trademark with the word "brand" to help define the word as a trademark. Johnson & Johnson changed the lyrics of their BAND-AID television commercial jingle from, "I am stuck on BAND-AIDs, 'cause BAND-AID's stuck on me" to "I am stuck on BAND-AID brand, 'cause BAND-AID's stuck on me."

European Union


Beginning in 2003 the European Union has sought to restrict the use of region names as trademarks for speciality food and drink to manufacturers from the region. Extending these restrictions outside Europe is controversial because regional names that are trademarks within Europe are often considered generic in other countries. It is made even more difficult where regional names have been trademarked outside Europe, such as Parma ham, which is trademarked in Canada by a Canadian manufacturer, preventing manufacturers from Parma in Italy from using their own name. Other products affected include Champagne, Bordeaux and many other wine names, Roquefort, Parmesan and Feta cheese, and Scotch whisky. In the 1990s the Parma consortium successfully sued the Asda supermarket chain to prevent it using the description Parma ham on prosciutto produced in Parma but sliced outside the region. See Protected Designation of Origin.

Disclaimer


:Please note that in no event should the appearance on this page of a trademarked (or formerly trademarked) name be construed as affecting any trademark rights a holder might possess in such a name; this page is intended to illustrate the problem rights holders face and have faced through history in protecting their marks, not to contribute to said problem. This page should not be considered authoritative with respect to whether a name is still legally trademarked in any particular jurisdiction.

Former trademarks which have become generic

The following list comprises those marks which were originally created and used as trademarks, but which have subsequently become synonymous with the common name of the relevant product or service (ie. they are genericized trademarks properly so called).

The following list comprises those marks which were originally created and used as trademarks (and which may continue in use as trademarks, and be actively enforced by their trademark owners), but which are generally acknowledged as becoming generic due to increasing generic usage.

Whether a mark appears in this list is therefore a subjective assessment, as some marks may already have become generic, whereas others may not be accepted as being generic. However all marks in the list are used generically to some extent.

Some common names for products or services are popularly believed to be genercized trademarks, however this in not the case as the names were never originally created or used as trademarks. Some examples are listed below.
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