Genericide: Are Your Trademarks Susceptible?
by Michael C. Antone, IP Attorney
Strong brands and trademarks are significant assets of a business as consumers look to your brand, e.g., Apple, Amazon, Marriott, etc. for goods and services they can trust to deliver value. Your brands conjure up consumer visions of phones, retailing, travel, and the other goods and services sold by large and small businesses alike who have invested enormous sums of time and money building goodwill in their brands.
However, sometimes consumers begin using the brand as the actual name of the product or service due to the success of the product or service and/or through improper usage by the trademark owners.
A Bad Development
While having your brand synonymous with a product or service might seem like a desirable outcome, it is actually a very bad development that can result in the loss of all of a business’ investment and goodwill in the brand.
The reason for this turn of fate from successful, high value brand to no value generic name goes back to the purpose of branding and trademarks, which is to identify the source of goods or services to consumers. When a brand becomes synonymous with a product or service, it merely identifies the product or service and not your business as its source.
This phenomenon, known as “genericide,” has claimed once-valuable trademarks, including ASPIRIN, ESCALATOR, ZIPPER, and CELLOPHANE, all of which were originally proprietary brand names that later became the generic names of the products and are of no value to their former owners. The transformation from protected trademark to generic name generally occurs when the consuming public no longer associates the brand with a single source, but instead understands the brand to be the common name for the actual products or services.
Genericide is not always a consumer-driven phenomenon. It may be inadvertently self-imposed or encouraged by the owner by conflating their trademark with the name of the product or service. Self-imposed genericide can occur in emerging markets where the early movers may actually be naming the product or service or their version of it or when a business is over aggressive in its promotion of the brand.
A tell-tale sign that a mark is traveling down the road to genericide is the use of the trademark as a noun or a verb with no reference to the actual name of the product or service. Since brands identify the source, brands are adjectives that modify the noun, which is the actual name of the product or service.
Trademark Rescue
Fortunately, genericide happens over time, so businesses have time to rescue their brands and retain the value of, and their investment in, their brands through proper trademark usage.
Several well-known brands have embarked on this rescue mission by aggressively advertising the proper use of their trademarks as adjectives and pairing them with generic product names, such as “BAND-AID brand adhesive bandages”, “KLEENEX brand tissues”, and “GOOGLE internet search engine”. Velcro Companies’ even made a humorous and informative video “Don’t Say Velcro” to remind the public that VELCRO is a brand and that actual product name is “hook-and-loop fastener”. In addition, consistently applying trademark symbols, such as ® or ™, and trademark notices is important to preserve your investment of time and money in your brand.
For business owners, the good news is that protecting your investment and the value you have built in your brands may be as easy as implementing sound trademark usage and protection policies. If you have questions about how to protect your investment in your brand, please contact the Nemphos Braue team.
