When a Trademark Becomes Too Popular: Understanding Genericide
In the world of intellectual property, trademarks serve as vital tools for distinguishing a company’s products or services from those of competitors. But what happens when a trademark becomes too well known—so familiar, in fact, that the public starts using it as a generic term for a type of product rather than a specific brand? This is where the concept of genericide comes into play.
What Is Genericide?
Genericide occurs when a trademark loses its legal protection because it has become the generic name for a general class of products or services. In other words, the trademark no longer identifies the source of a product—it simply refers to the product itself.
Some famous examples of trademarks that have suffered this fate include:
· Aspirin – Originally a trademark owned by Bayer.
· Escalator – Once a protected term by Otis Elevator Company.
· Thermos – Formerly a brand name that became synonymous with vacuum flasks.
Once a trademark becomes generic, it can no longer be exclusively used by the original owner. This opens the door for competitors to use the term freely, often resulting in a significant loss of brand value and market control.
How Does Genericide Happen?
Genericide typically results from widespread misuse of a brand name by the public, the media, or even the trademark owner. Common causes include:
· Lack of enforcement: If a company fails to monitor and correct the misuse of its trademark, it may gradually become generic in the eyes of consumers.
· Improper marketing: Using a trademark as a noun or verb in advertising (e.g., "Swiffer the floor") can accelerate the process.
· Success: Ironically, a product that becomes too successful can be a victim of its own popularity.
Legal Tests and Prevention
Courts generally use the primary significance test to determine whether a trademark has become generic. This involves assessing whether the public primarily understands the term as a brand name or as a general descriptor of a type of product.
To prevent genericide, trademark owners should:
1. Use trademarks correctly: Always use trademarks as adjectives, not nouns or verbs (e.g., "Xerox photocopiers" instead of "a Xerox").
2. Educate the public: Launch public campaigns or include usage guidelines to remind consumers that the term is a brand, not a product category.
3. Monitor and enforce: Watch for misuse in media, advertising, and product packaging, and take action when necessary.
Why It Matters for Your Business
Losing a trademark through genericide can have far-reaching consequences. Not only does it reduce the legal protections your brand enjoys, but it can also dilute your identity in the marketplace. If you're building a strong brand, protecting your trademarks is essential to ensuring your long-term success.
At The Trademark Law Firm, we help businesses register and protect their trademarks. If you have concerns about how your brand is being used (or misused) don’t wait until it’s too late. Contact our team to schedule a consultation.