When does a trademark become generic?

By Debby Winters

When the public generally uses the name of a specific product as a generic term, it becomes a case of “genericide” – a killing of the trademark by becoming generic. That’s not good for the product because generic terms do not get any trademark protection.

The situation is not common, but it happens.  Common words have begun as trademarks but passed over into the world of unprotectable generic terms.  Examples include aspirinescalator, cellophanedry ice, flip phone, kerosene, thermos, trampoline, and videotape to name just a few.  For some of those, there are other words we could use for the product, but it’s easy to see why we prefer to call aspirin just “aspirin,” rather than “acetylsalicylic acid.”  For others, the term is so ingrained that it’s hard to think of what else we would call the product: what’s the alternative to “trampoline” as a springboard for jumping?

For obvious reasons, owners of dominant trademarks are not keen to have marks cross over the line to become generic terms.  When that happens, the formerly valuable mark, which only they could use on their product, becomes fair game for everybody to use.  That is why the owners of dominant marks often make efforts to “police” use of their marks, or at least to remind the public that it’s a trademark, not a generic term.

We used to see ads every so often reminding us that “Xerox” was a trademark, so you could ask someone to “make a photocopy” of a document, but you shouldn’t ask them to “xerox” it.   Other product names that have fought this battle include “Kleenex,” “Clorox,” “Gore-Tex” and “BoTox.” In addition to Google and its battle, Coke is undergoing the same dilemma. If I asked you whether you wanted a Coke and handed you a Pepsi, would you be surprised or be expecting it? Would you reply with “yes, I’ll take a Pepsi” thinking that Coke was the generic term? The world of generics can be tricky and the companies that own them don’t want people to confuse the trademark with all products or they lose that special protection.

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