What Is a Generic Trademark?
Almost everyone has heard of trademarks, even if we don’t know the exact dictionary meaning. Even if you’re not a "Swiftie," you may have heard of Taylor Swift getting her fandom name trademarked — in addition to countless other words and phrases.
Trademarks are basically names, phrases, or logos registered by a company or entity, so they can use it to represent themselves, their product, or their brand.
We’re sure we all know what generic means as well. They’re essentially the basic, common, no-brand counterpart to the official representative words, names, or symbols that is a trademark. In short, generic words are the everyday terms we use on a day-to-day basis.
What do you get when you combine these two opposites together?
You get a generic trademark — and a new group of terms added to the general public’s vocabulary.
In this article, we discuss what exactly generic trademarks are, what they can mean for your business, and how you can prevent them from happening.
What Is a Generic Trademark?
A generic trademark is simply a trademarked word or phrase that has been demoted into a common or generic term.
Since trademarks are often used to specify a brand product or service, losing their trademark is equivalent to the term losing what makes it unique or special. Instead of referring to one specific product from one brand, the term becomes generic — in other words, it’s used to refer to other products of the same type.
Instead of one particular product or service, the public thinks of the type of product in general when they hear the generic trademark. Generic trademarks are like the general “brand” for a group of products or services.
Popular Examples of Generic Trademarks
A lot of formerly trademarked terms are now used to refer to products in a broad or general sense. Take the word “escalator,” for example.
Did you know that escalator used to be a trademarked name? Its last trademark owner was the Otis Elevator Company. The word was trademarked by Charles Seeberger, who is alleged to have combined scala, the Latin for “stairs,” with the word “elevator.”
The name became so popular that instead of being used to refer to the Otis Elevator Company’s electronic stairs specifically, it’s become synonymous with the product in general — even those manufactured by other brands.
Below are other examples of former trademarks that are now generic terms:
Aspirin: Last trademarked by Bayer AG, the word originally referred to a specific drug but is now used for painkillers in general.
Heroin: Last trademarked by Bayer AG, the name is now used to refer to a type of illegal drug in general.
Granola: Last trademarked by Kellog’s, the name was made up by James Caleb Jackson, who is also usually honored as the inventor of dry cereal.
Saran wrap: Created by Dow Chemical Company and last trademarked by S.C. Johnson, it’s now used to refer to plastic cling film or wrap in general.
Dry ice: Originally trademarked by Dry Ice Corporation of America, it now refers to solidified carbon dioxide in general.
Dumpster: This was originally trademarked by the Dempster Brothers for their line of garbage bins and was a combination of “dump” and “Demptser.”
There are also some trademarks that are still partially protected terms but are still widely used by consumers in a generic sense. Some examples include:
Band-Aid: This is often used to refer to adhesive bandages.
Xerox: This word is used as a generic word for “photocopy” in certain countries.
Zamboni: The term is used as a generic term for ice resurfacers, despite the design and configuration trademark held by Frank J. Zamboni & Co. Inc.
Styrofoam: This is used as a generic term for disposable foam eating utensils and packing material — though the actual trademarked Styrofoam used for thermal insulation is different.
AstroTurf: Originally trademarked by Sport Group, AstroTurf was named after the Houston Astrodome, which was the first sports venue where fake or replica grass was installed.
How Does a Trademark Become a Generic Trademark?
A genericide — the process of a trademark becoming a generic word — typically happens when the term is widely used to describe or refer to certain types of products or services.
As ironic as it may seem, the more popular a product or brand is, the greater the chances that its trademark turns generic. If the trademark name becomes as popular or even more so than the type of product it’s classified as, genericide is more likely to happen.
Widespread recognition is key to a trademark becoming generic. When this happens, the trademarked name slowly loses its ties to its company or the brand that created the word.
Can Generic Trademarks Be Trademarked Again?
Unfortunately, no. As per U.S. trademark laws, generic terms cannot be registered for trademark protection. This also includes generic trademark terms or trademarks that have undergone genericide.
When a trademark is downgraded into a generic term, it can no longer be used exclusively by the company or business that originally registered it. It’s now basically public domain.
What Should You Do When a Trademark Becomes Generic?
It’s hard to police and ensure the protection of a trademark that’s gone through genericide. If you want to use the term, you could cancel the trademark registration.
To do this, you will have to file a petition with the U.S. Patent and Trademark Office, specifically with the Trademark Trial and Appeal Board. On the petition, you will need to prove that the word or phrase is now used as a generic term and as such can no longer be used as a business trademark.
Once you’ve proven the genericide, the trademark registration will be removed, and the mark will lose all legal protection. It can now be used freely by the public.
Tips To Avoid Trademark Genericide
Losing protection of a trademarked term is more than simply losing a distinguishing name. It also means potentially losing profits and your brand value going down. That’s why it’s best to be proactive and prevent trademark genericide in the first place.
Genericide doesn’t happen overnight. It happens over time, which means you can take certain measures to stop it from becoming generic.
Here are our top tips to help you avoid losing a trademarked term.
1. Ensure a Strong, Unique Name
Trademarks need to be distinctive in order to be registered. The more distinctive and unique it is, the harder it can be for the term to become generic. This is how made-up words, arbitrary marks, and suggestive trademarks can avoid genericide.
2. Add the Word “Brand”
If you can’t think of any super unique name, adding the word “brand” to the official trademarked term or just on the product packaging might help. Examples of businesses that do this are Lysol, officially Lysol® Brand in its packaging, and Poland Spring, officially Poland Spring® Brand.
3. Avoid Using the Trademark as a Verb
Have you heard about Adobe discouraging the use of the word “photoshop” as a verb? It’s because of this — to prevent the name of one of their flagship programs from becoming generic.
Trademarks that are used as verbs, such as photoshopped or astroturfing, tend to lose their connection to their source or company as an identifier. Instead, the trademark is now more associated with the general action or product that does it.
4. Expand the Business or Product Line
This is the course of action that Johnson & Johnson’s took to prevent Band-Aid from full genericide. The name Band-Aid originally referred to adhesive bandages only. When it started becoming a generic term, the company expanded its product line under the Band-Aid name to include germ-killers and foot-care products.
5. Stay Vigilant Against Trademark Infringement
If your competitors start to use your registered trademark in advertising their own versions of the same product, there is a higher risk of genericide. That’s because consumers may start to think of your trademark to refer to their product as well — distancing it from yours.
It’s not just competitors who may infringe on your trademark. The media can misuse your trademark as well. That’s why trademark monitoring services and hiring a well-versed trademark lawyer is a good idea.
Not only will you need to keep track of how your trademark is being used in public, especially online, but you will also need to take legal action to protect your intellectual property rights.
Get Professional Legal Help to Avoid Genericide
If you find yourself in need of assistance with registering trademarks or ensuring your trademarks don’t suffer through genericide, we are here to help.
I'd be happy to help if you want to know more about your trademark legal rights! Reach out to me anytime at https://www.mdgrlaw.com/book-online or (754) 800-4481.
I am located in Florida, but I can help anyone around the world with U.S. trademarks. Foreigners can apply for registration in the US, and then use the US Registration as a jumping board for foreign registration most times.
Legal Disclaimer: The information in this blog post is for educational purposes only. This post does not contain legal advice. Legal advice can only be given by Attorney Melissa D. Goolsarran Ramnauth after a legal retainer agreement has been signed. This material is copyrighted by MDGR LAW.
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