Answer: a. Velcro !
Velcro is still a federally registered trademark whereas escalator, yo-yo, and thermos have all lost their trademark status due to genericide.
Want to learn more about trademarks and genericide? Continue reading below.
What is a trademark?
A trademark is generally a word, symbol, or other design that is used to indicate the source of a product or service. Think of product names like Apple’s iPhone, logos like McDonald’s golden arches, or slogans like Skittles’ “taste the rainbow.”
The underlying purpose of a trademark is to tell consumers where the thing they’re buying is coming from. You know that the soda you bought was made by Coca Cola because it says it right there on the can. No other company is allowed to put the words “Coca Cola” on their products, otherwise, consumers would get confused about who made the soda.
Importantly, trademarks may be registered with the federal government if they meet certain criteria related to their “distinctiveness” and if they’re actually in use (although registration is not necessary to have a valid, protectable trademark). This registration process gives the trademark certain protections to prevent other companies from using the same trademark. Check out my prior Trademark Trivia blog post for more information on what a trademark is.
What does it mean for a trademark to be generic?
A generic word is a word that is the default term among consumers for the class of goods or services. A generic word fails to distinguish the source of the good because it is the term that everyone uses for that particular thing. Accordingly, a generic term cannot be trademarked. For example, “chair” is a generic term for the thing you sit on everyday –there’s no other easy way to describe it. If it were a trademark, no one else would be able to sell those things as “chairs,” without infringing on the trademark. This would not be a very effective or fair system, so generic terms are not able to be trademarked for its respective class of goods.
However, even marks that are initially sufficiently distinctive and thus protectable (i.e. they could be registered) may at some future point become generic. This process, called “genericide,” results in the loss of the trademark registration. This usually happens when a product is very successful and usually fairly novel and becomes the colloquial way to refer to a product because there’s no other way to identify the object. For example, when Otis Elevator created the escalator, there was no product on the market that essentially combined the elevator and the stairs. But because everyone referred to the invention as an “escalator” (including in the patent), that mark became the generic term.
Words that have suffered genericide:
Here are some generic terms that were originally registered trademarks, but have since lost their trademark status because they were deemed generic:
How do you prevent genericide?
|How you should refer to these||trademarked products|
|Trademarked Name||Generic Product Name|
|Velcro||hook and loop|
|iPhone||mobile digital device|
Lots of companies have taken steps to prevent their trademark from becoming generic, using several common strategies. The most common is using the trademark as an adjective for the generic term. Companies direct consumers (through their marketing campaigns) to use the trademark in such a descriptive sense, pairing it alongside the generic, to encourage the association of the trademark with a brand rather than the class of goods. So rather than grabbing your Xeroxes, you grab your xerox photocopies. And instead of blowing your nose with Kleenex, you’re using Kleenex facial tissue. Companies will even reach out directly to writers to remind them to use the ® symbol or refer to their product as an adjective.
Similarly, it’s best to avoid using your trademark as a verb. However, Google seems to have survived the challenge to “googling” as a generic term for using a search engine (for now).
Another important way to prevent genericide, especially for a novel product, is to come up with a generic name right at the start. Trademarks like “linoleum” and “escalator” were the names of the new inventions, as listed on the patents. So, for years, the only product called an “escalator” was an “Escalator™.” But when the patents expired, and competitors began to make those moving staircases, everyone already knew of and referred to the invention as an escalator. Thus, there was no other way for competitors to refer to their own product without infringing the trademark. Accordingly, the marks were deemed generic and lost their registration. Conversely, Apple has been very strategic to make sure products like the iPad have a generic term—tablet—from the start.
And, if all else fails, you can make a catchy music video and appeal directly to consumers like Velcro did.
For more trademarks that have become generic or are at risk of genericide, check out this list.
Want to learn more about genericide? Check out this episode of the podcast Ipse Dixit to hear Professor Jorge Contreras from the University of Utah S.J. Quinney College of Law.
How do you feel about calling it hook-and-loop instead of Velcro? Comment below!
Loyola University Chicago School of Law, JD 2021