Everyone with a brand, idea, or concept needs to look into copyright, trademark, and patent laws. These three topics can provide you legal protection from individuals infringing on your ideas, and that includes intentional and unintentional infringement.
When we think about trademarks, our first thought is protecting unique names, logos, and taglines that identify businesses. We all know the golden arches represent McDonald’s, and the swoosh represents Nike. In these cases, both the name and logo are trademarks.
Using these examples, we want to talk about a little known concept in trademarks, known as a generic trademark.
To put it simply, had these two companies applied to trademark the terms “hamburgers” and “athletic shoes,” it would have ended in a denial. The law states, individuals and companies cannot trademark generic terms that identify common objects.
If you are looking to apply for a trademark with the United States Patent and Trademark Office, it would benefit you to learn more about generic trademarks.
Why a Generic Trademark is Necessary?
If we were allowed to trademark any word in the dictionary, it would have a tremendous negative impact on the world.
Imagine someone being able to trademark commonly used words. They would then have the power to sue anyone who used those words. Lawsuits would be flying left and right, and people would have to watch their every word. No one wants that!
What are Genericized Trademarks?
Genericized trademarks are words we commonly use to describe a product or service. These can be names that were once trademarked by a company or brand, although some are never trademarked.
Unfortunately, sometimes a term, whether trademarked or not, becomes a popular catchall phrase for an entire industry. When this happens, the courts have to decide whether it is feasible to uphold the popular term’s trademark.
When the courts decide that a trademark has become genericized, the trademark owner loses its trademark rights. This also means that competitors can then use the genericized terms when describing and marketing their own products and services.
For example, here is a list of generic trademarks we use today that have become genericized:
There are many more trademarks that have been genericized as well. It is often impossible for a company to protect its trademark when the average citizen is committing the violation. This is typically what snowballs the genericization of a trademarked term.
How to Protect Your Trademark?
The main goal of obtaining a trademark is to protect your brand, product, or service. However, trademarks must be renewed over time. The first step in protecting your trademark is to keep it active.
Keep in mind, some companies or individuals would love to pick-up abandoned or non-renewed trademarks. So it is very important to make sure you are taking all of the necessary steps to keep your trademark(s) active.
The next step is to keep your trademark relevant. You can do this by keeping your marketing fresh, identifying your trademark in packaging, and providing awareness about the meaning of your trademark. All of these efforts will help to keep your trademark from becoming a generic term.
Grammar is important when it comes to protecting your brand and trademark from genericization. Simple mistakes in terminology when discussing your trademark could lead to generic trademarking. Avoid using your trademark in plural form unless the trademark name is plural, and never use your trademark as a noun or a verb.
In best practices, your brand should always precede a generic trademark, such as “Skywalker trampolines.”
Expand Awareness About the Brand
A major way to ensure your brand ends up in the generic trademark bin is for your company to fail to grow and expand. Keeping a brand alive means keeping up with trends and current product placement.
Registered trademarks like Tylenol remain relevant because they continue to grow their product offering. It isn’t marketed as just a pain reliever. They have grown to include:
- Regular Strength Tylenol
- Extra Strength Tylenol
- Tylenol Cold & Flu
- Tylenol 8-Hour Arthritis Pain
- Tylenol 8-Hour Aches and Pains Extended-Release
The important point to note is the word Tylenol is widely used in every product they have added to their offerings.
Protecting a Popular Phrase
It is not unheard of for a person to coin a phrase that grows in popularity. With social media, it is easy for people to grab hold of a catchy term and make it go viral.
If the person had any inkling of how the public would receive their catchphrase, they would first file a trademark application. Celebrities do it all the time to prevent people from profiting off their original idea or phrase.
A prime example of waiting too long to file a trademark is the celebrity gossip queen, Wendy Williams. She’s been known for the phrase “How You Doin?” since the late 90s. When she says it on her daytime talk show The Wendy Williams Show, it is a full production with hand motions and facial expressions. Her fans even use it as a greeting during her show opening when she engages with audience members.
She may have been able to earn a trademark for the phrase back in the 90s when she first started using it. However, the USPTO would certainly deny the request nowadays because the phrase is so generic in use. Throughout our day, most of us ask someone, “how are you doing?” or some variation of the phrase. Therefore, the window for trademarking the phrase (if there was one) probably closed many years ago.
Fair Use in Trademarks
A part of filing for a trademark is the concept of fair use. In copyright law, fair use outlines several specific reasons for someone to use your copyrighted material without penalty. In trademark law, fair use separates the use of a trademark from someone using the term in good faith.
Here is an example of how fair use and generic trademarks work together. Above we have a list of common generic trademarks, including the term “trampoline.”
Suppose you decided to name your company ABC Trampoline Co. You would be protected under fair use because your business just sells trampolines, and you are not stating that you own the term. At this point, the word trampoline is only recognized as a common term that describes a class of products.
Therefore, you can use the term trampoline and not get sued. Unless the entire phrase “ABC Trampoline Co.” was already trademarked by someone. In that case, using the phrase would not qualify for fair use.
Don’t Get Genericized
As you can see, a generic trademark is multi-faceted. When you go through the process of getting a trademark, make sure to protect it. Celebrities can afford to trademark everything from A to Z, but most small businesses cannot. So, it’s very important to take all of the necessary precautions to ensure that your trademark never becomes genericized.
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