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The Death of a Trademark

Posted by: Kathryn Geraghty and Nicole Briggs on March 09, 2012

Many people use trademarks as a generic term, which is both a blessing and a curse. Does this ring a bell? “I’m Xeroxing my report,” “I’ll Google it!” or “Mom, I need a Band-aid.”

Generic trademarks are brand names that become descriptors for all similar products regardless of manufacturer. Trademarks begin as distinctive and overtime become generic through common misuse of brands names. It typically happens to brands after acquiring substantial market dominance. Genericide of a trademark is deemed as successful when the average consumer doesn’t realize it was a trademark. Brands contribute to the problem by failing to emphasize their name is also a trademark.

Brand is a promise, and the trademark distinguishes its identity of products or services from others. A brand loses differentiation in the marketplace when a trademark transcends into generic language. There are no signals to identify its authenticity, relevance, consistency, and presence. This creates the risk of trademark loss, where the brand will lack protection and allows for competitor use. Genericide becomes the loss of brand assets to competitors. For example, it can be estimated that Bayer has lost millions of dollars by not preventing Aspirin from going generic. Although still a registered trademark of Bayer in over 80 countries, Aspirin has lost its trademark registrations in the United States. Along with Aspirin, Bayer has also lost its rights to Heroin due to genericide.

The genericide of a trademark can also occur when the trademark is the name of a product that also shares protection rights with a patent. This happens when the owner of the patent fails to emphasize a descriptive term for the product. Patents gives the creator exclusive rights for the length of the patent. When the patent expires, competitors begin manufacturing their own version using the creator’s trademark to name their product. A famous patent that have lost their trademark rights in this manner is Otis Elevator Company escalator. Their claim was rejected because Otis Elevator Company had used the term as a generic descriptive term in patents and in advertising.

Xerox became synonymous with photocopy. They had to undergo an extensive public campaign to rebuild their brand. Xerox has made an effort by advising consumers to use “photocopy” instead of “Xeroxing” documents. Spending thousands of dollars Xerox has launched the ad below to education the public on proper use of their trademark.

Trademark protection is a full-time job. If an investment into trademark protection is prohibitive then brand should take the basic steps in protection. Register the name and secure the trademark registration, don’t use the name generically yourself, don’t use the name as a noun or as a verb, educate your consumers, and monitor the public. The last one doesn’t require in-depth social media listening strategies. All brands are interacting with consumers everyday over Facebook and Twitter. Pay attention to how people are using your trademark on your own social media sites. You can quickly educate users with a message about misuse of trademarks. For example, Johnson & Johnson has changed their jingle from “I’m stuck on Band-Aid’s, ‘cause Band-Aid’s stuck on me” to “I’m stuck on Band-Aid brand, ‘cause Band-Aid’s stuck on me”.

Some names that are in danger of becoming generic, arguably, are Jeep, Sharpie, Crock-Pot, Onesies, Saranwrap, and Post-it.

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