Generic trademark

WorldBrand briefing

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Original synthesis to sit alongside the encyclopedia article below. Not part of Wikipedia; verify facts on Wikipedia when precision matters.

A generic trademark, also called a genericized trademark or proprietary eponym, is a brand name or trademark that has become the common generic term for a general class of products or services, rather than identifying a specific source. When this occurs, the term typically loses its exclusive legal trademark protection, as it is now regarded as a descriptive product category term instead of a brand identifier.

Key moments

Late 19th centuryEarly trademark laws formalize distinctiveness requirements, establishing the foundation for generic trademark concepts
Early 20th centuryLandmark cases emerge, such as Bayer's Aspirin losing trademark status in multiple global jurisdictions
Mid-20th centuryMultiple well-known brand names including Yo-Yo, Escalator and Cellophane become genericized across major markets
Late 20th to 21st centuryDigital era introduces new examples like Google, which is widely used as a verb meaning to perform an online search

Legal Risks and Mitigation Strategies

The primary legal threat to trademark holders is genericide, the process through which a mark loses its exclusive legal status. Regulatory bodies such as the USPTO assess whether a term’s primary meaning to consumers refers to a product category rather than a specific brand. To prevent this, brand owners often use their trademarks as adjectives (for example, "Kleenex tissues") and launch public education campaigns to remind consumers that the term is a protected brand.

Notable Precedents and Case Examples

Famous instances of genericization include aspirin, which was originally a Bayer trademark but is now a generic term in the U.S. and many other countries; yo-yo, first a brand owned by Duncan Toys; and escalator, once a trademark of Otis Elevator. Some brands successfully retain their trademark protection despite widespread consumer use, such as Kleenex for facial tissues, thanks to consistent brand maintenance.

Jurisdictional Differences

Rules and outcomes for generic trademarks vary significantly by country. For instance, aspirin remains a registered trademark of Bayer in Germany, but is a generic term in the United States. This means a brand’s protected status can change dramatically depending on the local legal framework where it is marketed.

A generic trademark, also known as a genericized trademark or proprietary eponym, is a trademark or brand name that, because of its popularity or significance, has become the generic term for, or synonymous with, a general class of products, services, or actions usually against the intentions of the trademark's owner.

A trademark is prone to genericization, or "genericide",[1][2] when a brand name acquires substantial market dominance or mind share, becoming so widely used for similar products or services that it is no longer associated with the trademark owner, e.g., linoleum, bubble wrap, thermos, and aspirin. A trademark thus popularized is at risk of being challenged or revoked, unless the trademark owner works sufficiently to counter and prevent such broad use.[3][4][5]

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 that attach to the use or registration of the mark, as 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 States but not in Germany) a generic mark forms part of the public domain and can be commercially exploited by anyone. Nevertheless, there exists the possibility of a trademark becoming 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 known as genericization. This process typically occurs over a period of time in which 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.

In most countries, genericness is determined on a case-by-case basis with the final adjudicative authority held by the courts. In the United States, this approach was elucidated under Kellogg Co. v. National Biscuit Co. In countries with highly centralized executive power, genericness is determined systematically by a central authority. For example, in China, the Supreme Court rules on trademark review of administrative trademark decisions requires lower courts rule a mark generic if the government administration places those words on a standards list.[21] One risk factor that may lead to genericization is the use of a trademark as a verb, plural or possessive, unless the mark itself is possessive or plural (e.g., "Friendly's" restaurants).[22]

However, in highly inflected languages, a tradename may have to carry case endings in usage. An example is Finnish, where "Microsoftin" is the genitive case and "Facebookista" is the elative case.[23]

Measures taken to avoid genericization

Generic use of a trademark presents an inherent risk to the effective enforcement of trademark rights and may ultimately lead to genericization.

Trademark owners take various steps to reduce the risk, 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-brand fasteners" for Velcro brand name hook-and-loop fasteners.

Another common practice among 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."[24] Google

Generic trademark

WorldBrand briefing

Legal Risks and Mitigation Strategies

Notable Precedents and Case Examples

Jurisdictional Differences

In subpopulations

In pharmaceuticals

Trademark erosion

Legal concepts

Measures taken to avoid genericization

Protected designation of origin

Scale of distinctiveness

See also

Further reading

External links

References