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Genericized trademark

From Academic Kids

A genericized trademark (Commonwealth English genericised trade mark), sometimes known as a generic trade mark, generic descriptor or proprietary eponym, is a trademark or brand name which has become synonymous with the general or formal term for a particular type of product or service, to the extent that it often replaces this term in colloquial usage.

Contents

Concepts

One consequence of a trademark becoming generic is that the exclusive rights which may attach to the use or registration of the trademark can no longer be legally enforced. The diminishing or loss of these rights is sometimes known as genericide, although other terms may be used to refer to the process by which a trademark becomes generic. Genericide typically occurs over a period of time where the trademark owner does not maintain or enforce its proprietary rights (eg. by using the mark, or by pursuing infringement action).

This means that the legal determination of whether a mark has become generic will usually arise in the context of an attempt to invalidate or otherwise cancel a registration for a mark before a government trademarks office or registry, or before a court. In this context a genericized trademark is a trademark which no longer serves to uniquely identify the commercial source or origin of a product or service. The terms "genericide" and "genericized trademark" are not terms of art.

As the determination of whether a trademark is a "genericized trademark" in any other context tends to be a subjective assessment, there is some uncertainty as to what the term actually encompasses. Nevertheless, there is a similar degree of "genericity" between a trademark registration which is deemed unenforceable (because the trademark no longer exclusively identifies the trademark owner as the commercial source of its products or services), and a former trademark which is widely considered generic by the public.

It is important to note that regardless of whether trademarks are perceived as being "genericized trademarks", or whether well known trademarks are used in a generic manner, a trademark does not become generic simply as a result of popular usage, particularly if there has been no legal determination on the status of a trademark, and the trademark owner maintains and enforces their rights.

Legal protection

Trademarks, unlike copyrights and patents, must be actively used in order to maintain strong legal rights. By comparison, a copyright or patent holder does not necessarily need to use their creation in order to maintain their rights.

However, a trademark owner must be careful not to lose control of how its trademark is used. If a trademark becomes successful in gaining mind share it may become "generic" through common use. Once this point is reached it may no longer be possible to enforce rights in relation to the trademark.

For example, if a trademark owner does not police the use of its trademark in relation to a new product, by preventing third parties using the trademark to describe their copies of the product, and the general public start using the trademark as the generic name for the product, the trademark may become a genericized trademark. Thomas Edison's mimeograph is a classic example.

Avoiding genericide

Trademark owners should not use their trademark as verbs or noun, implying the word is generic. Likewise, using the trademark as a plural or possessive (i.e. a noun) will imply the trademark is generic (unless the mark itself is possessive or plural, e.g., "Friendly's" restaurants). If the trademark is associated with a new invention, the trademark owner should use a descriptive term for the product that can be distinguished from the trademark for the product.

Where a trademark is used generically a trademark owner may need to take special proactive measures in order to retain exclusive rights to the trademark. Xerox provides one successful example of a company which was able to prevent the genericide of its core trademark through an extensive marketing campaign advising consumers to "photocopy" instead of "Xeroxing" documents. Another common practice amongst 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."

As generic use of a trademark is often related to how well-known a trademark has become, some trademark owners mistakenly believe that it is useful to achieve a level of genericity, or may otherwise overlook a certain level of generic use, despite the inherent risk of generic use upon the maintenance of strong trademark rights.

European Union

Since 2003 the European Union has actively sought to restrict the use of geographical indications by third parties outside the EU. Although a GI for specialty food or drink may be generic, a GI is not a trademark because it does not serve to exclusively identify a specific commercial enterprise, and therefore cannot constitute a genericized trademark.

The extension of protection for geographical indications is somewhat controversial because a GI may have been registered as a trademark elsewhere. For example, Parma Ham could constitute part of a trademark registered in Canada by a Canadian manufacturer, which may prevent manufacturers from Parma in Italy using this name in Canada.

Other affected products include Champagne, Bordeaux and many other wine names, Roquefort, Parmesan and Feta cheese, and Scotch whisky. In the 1990s the Parma consortium successfully sued the Asda supermarket chain to prevent it using the description Parma ham on prosciutto produced in Parma but sliced outside the region. See also Protected Designation of Origin.

Disclaimer

Please note that in no event should the appearance on this page of a trademarked (or formerly trademarked) name be construed as affecting any trademark rights a holder might possess in such a name; this page is intended to illustrate the problem rights holders face and have faced through history in protecting their marks, not to contribute to said problem. This page should not be considered authoritative with respect to whether a name is still legally trademarked in any particular jurisdiction.

List of genericized trademarks

The following list comprises those marks which were originally created and used as trademarks, but which have subsequently become synonymous with the common name of the relevant product or service. Marks which appear in this list have become so generic that their former status as a proprietary trademarks is often unknown to the general public. (See also List of proprietary eponyms based on active trademarks.)

If any of the original registrations for such marks have not yet expired or been cancelled, it is unlikely that the registered owners would be able to successfully enforce these registrations.

Former and current trademarks which are often used generically

Some words were originally created and used as trademarks, and may continue in use as trademarks and be actively enforced by their trademark owners, but are generally acknowledged as becoming generic due to increasing generic usage. This is therefore a subjective assessment, as some marks may already have become generic, whereas others may not be widely accepted as being generic.

See also: List of proprietary eponyms based on active trademarks

Terms which are not genericized trademarks

Some common names for products or services are popularly believed to be genercized trademarks, however this in not the case as the names were never originally created or used as trademarks. Some examples are listed below.

  • Kerosene
  • Lava lamp — this originally derived from an alteration of the trademark Lava Lite, although lava lamp was subsequently registered as a trademark in the United Kingdom by Mathmos Limited
  • Montessori — although often capitalized to suggest trademark significance, this name did not originate as a trademark.
  • Nylon - synthetic polymer invented at DuPont
  • Spam - pork and ham product and trademark of Hormel Foods, but is not used generically in reference to all brands of canned luncheon meat made from seasoned pork and ham. Rather, the newest definition being: unsolicited commercial e-mail sent indiscriminately to vast numbers of recipients.

Genericized trademarks (non-English)

Dutch

Finnish

French

  • bic - a disposable ball-point pen
  • minitel - the telephone viewdata service or the machines that run the service operated by France Tlcom.
  • mobylette (mob) - moped
  • scotch - transparent adhesive tape
  • frigidaire - fridge

German

  • Birkenstock - open sandals
  • Edding - felt-tip permanent marker
  • Fn - hair dryer, named after a warm air alpine wind
  • IKEA-Schlssel - hexagonal wrench (usually supplied with IKEA furniture)
  • Kaba - chocolate milk powder/drink
  • Labello - moisturizing lipstick
  • Nutella - hazelnut chocolate spread (ex-East Germans sometimes use the name of the East German version, Nudossi)
  • Tempo - paper tissues
  • Scheibletten - sliced cheese
  • Selters - sparkling water
  • Tesafilm - transparent adhesive tape (Tesa is the trademark in this word)
  • Tixo - transparent adhesive tape, mainly used in Austria
  • Uhu - liquid glue, especially paper glue
  • Zippo - gas-fueled lighter

Greek

  • Kariofili (Καριοφύλι) - A front-loading gun (From Cario & Figlio, a 18th Century maker of such guns)
  • Klark (Κλάρκ) - Forklift (from Clark - a manufacturer)
  • Merenda (Μερέντα) - Any spread similar to Nutella (a local Kraft brand)
  • Nes (Νες) - instant coffee (Nescaf, a Nestl brand)
  • Nounou (Νουνού) - Canned concentrated milk (A Friesland Foods brand)
  • Philadelphia (Φιλαδέλφια) - Cream Cheese (a Kraft brand)
  • Stayier (Στάγερ) - Large military truck (from Steyr, a manufacturer)
  • Tzip (Τζίπ) - A vehicle for off-road use (Jeep, a DaimlerChrysler brand)

Hebrew

Indian

  • Godrej - steel cupboard. Named after the multi-product business house of India that once was synonymous with steel cupboards
  • Bajaj - auto rickshaws, synonymous with Scooters and Auto-rickshaws besides other famous products
  • Dalda - hydrogenated vegetable fat, comes from the manufacturer of the Vanaspati (hydrogenated vegetable fat). A member of the business family, HLL (Hindustan Lever Limited)

Romanian

  • Adidas - sport shoe
  • Pampers - diapers (nappies), from Johnson & Johnson's 'Pampers'
  • Scotch - transparent adhesive tape

Russian

  • Кеды (Kedy) from Keds training shoe. The same type of shoe known as Vans in the US
  • Памперсы (Pampersy) - diapers (nappies), from Johnson & Johnson's 'Pampers'
  • Примус (Primus) - kerosene stove
  • Скотч (Skotch) - a transparent adhesive tape
  • Унитаз (Unitaz) - toilet fixture, from Finnish brand Unitas (Unity)
  • Фломастер (Flomaster) - felt-tip pen, from Flo-Master brand
  • Ксерокс (Xerox) - copy machine

Swiss German

  • Natel - mobile phone (the name that the incumbent operator Swisscom, gave its mobile network from the full name of this, Nationales Autotelefon)

Turkish

  • cemse - pronounced approximately "jam-say" comes from GMC, used for a kind of truck and military carrier
  • Selpak - tissue
  • jilet - a safe razor, from Gillette brand

See also

External links

ja:一般化された商標一覧

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