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A genericized trademark (also known as a generic trademark, proprietary eponym) is a trademark or brand name that has become the colloquial or generic description for or synonymous with a general class of product or service, rather than the specific meaning intended by the trademark's holder. Using a genericized trademark to refer to the general form of what that trademark represents is a form of metonymy.

A trademark typically becomes "genericized" when the products or services with which it is associated have acquired substantial market dominance or mind share. A trademark thus popularized puts its legal protection at risk, as unless the owner of an affected trademark works sufficiently to prevent such broad use its intellectual property rights in the trademark may be lost.

Examples

A few examples of trademarks which have lost their legal protection in the US are:



While linoleum, coined by its inventor and patent holder Frederick Walton, is the first product ruled by a court as generic, it was never trademarked.

Legal concepts

Whether or not a mark is popularly identified as genericized, the owner of the mark may still be able to enforce the proprietary rights which attach to the use or registration of the mark, so long as the mark continues to exclusively identify the owner as the commercial origin of the applicable products or services. If the mark does not perform this essential function and it is no longer possible to legally enforce rights in relation to the mark, the mark may have become generic. In many legal systems (e.g., in the United Statesmarker but not in Germanymarker) a generic mark forms part of the public domain and can be commercially exploited by anyone. Nevertheless, there exists the possibility of a trademark to become a revocable generic term in German (and European) trademark law.

The process by which trademark rights are diminished or lost as a result of common use in the marketplace is sometimes known as genericide. This process typically occurs over a period of time where a mark is not used as a trademark (i.e., where it is not used to exclusively identify the products or services of a particular business), where a mark falls into disuse entirely, or where the trademark owner does not enforce its rights through actions for passing off or trademark infringement.

One risk factor which may lead to genericide is the use of a trademark as a verb, noun, plural or possessive, unless the mark itself is possessive or plural (e.g., "Friendly's" restaurants).

Avoiding genericide

Trademark owners will naturally seek to maximize the popularity of their marks. However, generic use of a trademark presents an inherent risk to the effective enforcement of trademark rights and may ultimately lead to genericide.

Trademark owners may take various steps to reduce the risk of genericide, including educating businesses and consumers on appropriate trademark use, avoiding use of their marks in a generic manner, and systematically and effectively enforcing their trademark rights. If a trademark is associated with a new invention, the trademark owner may also consider developing a generic term for the product to be used in descriptive contexts, to avoid inappropriate use of the "house" mark. Such a term is called a generic descriptor, and is frequently used immediately after the trademark to provide a description of the product or service. For example, "Kleenex tissues" ("facial tissues" being the generic descriptor) or "Velcro fasteners" for brand name hook-and-loop fasteners.

Another common practice amongst trademark owners is to follow their trademark with the word brand to help define the word as a trademark. Johnson & Johnsonmarker 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." Google has gone to lengths to prevent this process, discouraging publications from using the term 'googling' in reference to web-searches. In spite of this, in 2006, google was defined in the Oxford English Dictionary "Google calls in the 'language police'", BBC, June 20, 2003 and the Merriam Webster Collegiate Dictionary google - Definition from the Merriam-Webster Online Dictionary, Merriam-Webster as a verb meaning "to use the Google search engine to obtain information on the Internet".

Where a trademark is used generically, a trademark owner may need to take special proactive measures to retain exclusive rights to the trademark. Xerox corporation was able to generally prevent the genericide of its core trademark through an extensive public relations campaign advising consumers to "photocopy" instead of "xerox" documents.

Another example is LEGO Company, with a library of 61 trademarks filed since the original LEGO trademark in 1974 . The Company printed in manuals in the 1970s and 1980s a request that customers call the company's interlocking plastic building blocks "'LEGO blocks' or 'toys' and not 'LEGOs'." While largely unheeded, use of the deprecated term remained largely confined to the company's own products and genericization failed to occur.

Protected designation of origin

Since 2003, the European Union has actively sought to restrict the use of geographical indications by third parties outside the EU by enforcing laws regarding what is known as "protected designation of origin". Although a geographical indication for specialty food or drink may be generic, it is not a trademark because it does not serve to exclusively identify a specific commercial enterprise, and therefore cannot constitute a genericized trademark.

The extension of protection for geographical indications is somewhat controversial because a geographical indication may have been registered as a trademark elsewhere. For example, if "Parma Ham" were part of a trademark registered in Canadamarker by a Canadian manufacturer, ham manufacturers actually located in Parmamarker, Italymarker might be unable to use this name in Canada.Bordeaux, cheeses such as Roquefort, Parmesan, and Feta, Pisco liquor, and Scotch whisky are examples of geographical indications. 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 Parma region.

See also



Notes

  1. Human Interest
  2. zipper – Definitions from Dictionary.com
  3. http://www.sparc.org/trade8.html
  4. 3Com Legal: Trademarks and Brands
  5. http://www.trademarkia.com/company-lego-juris-as-719033-page-1-2


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