The distinguishing component in a mark is often referred to as the trademark\u2019s \u201cdistinctiveness.\u201d There are four levels of distinctiveness<\/a> (listed weakest to strongest):<\/p>\n Flip phone<\/a> was once a registered descriptive mark (\u201cflip phone\u201d is descriptive of a handheld phone that must be flipped open to function) owned by Motorola<\/a> that was \u201ckilled\u201d through genericide. Trademark death, or genericide, occurs when the brand name, or trademark, of a product with any level of distinctiveness becomes so famous and ubiquitous that the public uses the name for the product rather than its specific source. That\u2019s what happened with Motorola\u2019s mark. It no longer refers to only Motorola\u2019s phone, but all phones with the characteristic \u201cflip\u201d functionality.<\/p>\n Genericide Graveyard<\/u><\/p>\n Which other trademarks have taken the \u201cfateful step<\/a>\u201d in becoming generic? Below, are trademarks that became the names of products and have been buried in the trademark graveyard \u2013 aka, the dictionary!<\/p>\n Fanciful <\/em>\u2192<\/em> Generic<\/em><\/p>\n ESCALATOR<\/a><\/p>\n Oh, the moving staircase? Yes! Haughton Elevator Co. v. Seeberger<\/a> found that \u201cescalator\u201d is \u201crecognized by the general public as the name for a moving stairway\u201d and not the original source. Haughton Elevator Company dropped the ball by using \u201cescalator\u201d to describe the product, instead of an indication of the brand name with the product name, i.e. moving stairway. Descriptive <\/em>\u2192<\/em> Generic<\/em><\/p>\n KETTLE CHIPS<\/a><\/p>\n Kettle-cooking was once known as batch-cooking, or a means for large scale production and distribution. In fact, kettle cooking is an intricate process<\/a> requiring potatoes to be sliced in small batches and stirred and cooked by hand in the fryers. In the 1980s and 1990s, many companies made potato chips using a kettle-cooking process that included \u201ckettle\u201d in their product names. Classic Foods Inc. vs. Kettle Foods Inc<\/a>. found evidence that \u201ckettle\u201d and \u201ckettle chips\u201d had been used in many newspapers and magazines, in reference to the chip, specifically the cooking process. This meant that \u201ckettle\u201d was so descriptive of this type of potato chip to the extent that it became incapable, alone, of telling the customer the brand origin. Kettle is considered generic. So that\u2019s why we see many products that use \u201ckettle\u201d in their name.<\/p>\n ESCALATOR and KETTLE CHIPS, may their marks RIP.<\/p>\n The Battle Against Death<\/u><\/p>\n Some trademark owners were able to identify the impending doom for their mark, as popularity began to rise, and were successful in keeping their mark valid. There are various generic (*pun intended*) precautions known to prevent genericide. Federally registered marks can, and should, add the \u00ae symbol<\/a> with their mark. Unregistered marks can add \u201cTM\u201d with their mark. Even more important, trademark owners should use their mark in conjunction with another term (see the examples below). Ultimately, trademark owners should remain vigilant to prevent generic use of their marks by consumers, media, or competitors.<\/p>\n BAND-AID<\/p>\n Band-Aid<\/a>\u00ae is a mark for adhesive bandages. But, the mark, is often used by the public to describe any bandage, regardless of the brand. The jingle<\/a> for Band-Aid\u00ae is \u201cI am stuck on Band-Aid\u00ae brand<\/em> \u2018cause Band-Aid\u2019s\u00ae stuck on me.\u201d Besides the catchy melody and cute children singing, this advertisement is genius! Adding \u201cbrand\u201d after Band-Aid\u00ae, Johnson & Johnson effectively trains the consumer away from making its trademark become generic. Also, if the jingle is stuck in your head for the rest of the day, sorry, but me too.<\/p>\n VELCRO<\/p>\n VELCRO<\/a>\u00ae is a mark for a type of hook-and-loop fastener. Fearing loss of their VELCRO\u00ae mark, the company\u2019s legal counsel tested the waters of a new career in acting when they published \u201cDon\u2019t Say \u2018Velcro\u2019 Video<\/a>.\u201d The video advises consumers not to use \u201cvelcro\u201d as a noun or a verb<\/a>, e.g. velcro shoes. Again, not only is the video incredibly entertaining, but it also educates consumers to help protect the integrity of the brand and their trademark rights.<\/p>\n COKE<\/p>\n Who\u2019s in trouble?<\/u><\/p>\n Now that we have an idea of what genericide is and what it looks like, let\u2019s look at some trademarks that are still valid, but are approaching the line of being generic. Plus, here are a few suggestions on how to resist genericide.<\/p>\n POST-IT<\/a>\u00ae, HULA HOOP<\/a>\u00ae, and ZIPLOC<\/a>\u00ae were three trademarks that came to my mind that I often use to describe the actual product. Good practice for these marks includes referring to each as POST-IT\u00ae notes<\/em> and not \u201cpost-its\u201d; HULA HOOP\u00ae playing <\/em>and not \u201chula hooping\u201d; and ZIPLOC\u00ae bags<\/em> and not \u201cziplocs.\u201d<\/p>\n Finally, there was recently an excellent example of active policing and consumer protection shown by LEGO. In 2021, Seth Meyers made a joke on his show \u201cLate Night with Seth Meyers,\u201d referring to a well-known brand of plastic building bricks as \u201cLegos.\u201d<\/a> The public immediately came after Seth Meyers, as they might, to explain Lego is plural for Lego, to which Seth Meyers said he could not conform to<\/a>. The final response (and the best part of this story in the fight against genericide) was by Lego saying, \u201cthe plural is not \u2018LEGOS.\u201d It\u2019s not even \u2018LEGO.\u2019 It\u2019s actually \u2018LEGO BRICKS!\u2019\u201d And if you\u2019ve learned anything from this post, you KNOW The LEGO Group<\/a> recruited their best trademark attorneys in crafting this tweet. And now you could have done so too!<\/p>\n Sophia Gunzburg<\/em> Popularity is inherently a good thing for brands. You want everyone to know the name of your product, right? What if too much popularity was a bad thing? As it turns out, too much popularity can kill your trademark rights, in a process called genericide. Continue reading Deliberate? Unlawful? Trademark Death by Genericide<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":2390,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4,11],"tags":[138,153,262,319],"class_list":["post-2165","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-fun-facts","category-trademarks","tag-intellectual-property","tag-ip-law","tag-registered-trademark","tag-trademark"],"_links":{"self":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/2165","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/comments?post=2165"}],"version-history":[{"count":2,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/2165\/revisions"}],"predecessor-version":[{"id":3734,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/2165\/revisions\/3734"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/media\/2390"}],"wp:attachment":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/media?parent=2165"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/categories?post=2165"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/tags?post=2165"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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A generic term is one that tells the consumer exactly what it is. Under no circumstances can a generic word become a trademark. It would be unfair for one entity to have exclusive market control over a word that can\u2019t be replaced with another to describe the thing. Imagine using a different word for a flip phone<\/a>\u2013 \u201cclamshell-designed phone-device\u201d? Absolutely not!<\/p>\n![\"\"](\"http:\/\/blogs.luc.edu\/ipbytes\/files\/2022\/11\/teemu-laukkarinen-eBi0v1D_po8-unsplash-300x200.jpg\")
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COKE<\/a>\u00ae is a mark for a specific flavor of a sparkling beverage owned by Coca-Cola. In a rather more aggressive approach<\/u>, Coca-Cola has sent out undercover employees to uncover retailers substituting, without telling the consumer, another cola beverage when the consumer orders \u201cCoca-Cola\u201d or \u201cCoke.\u201d If Coca-Cola finds retailers are continuously doing this, Coca-Cola will bring a trademark-infringement<\/a> suit. Whether or not this is \u201cgood practice<\/a>\u201d is for another blog post.<\/p>\n![\"\"](\"https:\/\/blogs.luc.edu\/ipbytes\/wp-content\/uploads\/2022\/03\/LUL21A_10-9_0982x.jpeg\")
<\/p>\n
\nAssociate Blogger<\/em>
\nLoyola University Chicago School of Law, J.D. 2024<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"