Why trademarks become generic and how to protect them?

February 28, 2017

Trademarks are the words, names, slogans, symbols, or any signs that identify a product or a service and they aid you throughout the life of your product. Trademarks are great, protective, and long lasting marks unless they are at a risk of getting lost from the mouth of your own consumers. Yes, the risk of becoming “Generic”!

A trademark is said to become generic when the product or service with which the trademark is registered have acquired substantial market dominance or market share, such that the primary meaning of the genericized trademark becomes the product or service itself rather than an indication of source of the product or service. It is more like a suicide of your trademark where the trademark, on account of much-enjoyed fame kills itself. Brand gendercide or the suicide of your brand it is!

We all have, in our day-to-day life have heard questions such as:-

” Does anyone have a Band-Aid”?

“Did you get those notes Xeroxed “?

Where in actual, both the questions invoke a registered trademark. Band-aid is a registered trademark of Johnson&Johnson whereas Xerox was trademarked by the company named Xerox. Here what we can see happening is, consumers take a top of mind example and use it to refer to all the similar products in the category.

Why does it matter?

Brand gendercide or the process when trademarks become generic is something that can have severe legal consequences and as a result, an end to the trademark. It may be on account of inappropriate pricing and lack of appropriate policing by the proprietor. Once a mark becomes generic, it is available in the public domain for everybody, even for competitors of the registered trademark’s owner.

All your effort are doomed at once if you do not take these necessary steps to save your registered trademark.

Use a generic descriptor

You can prevent your trademark from becoming a generic noun when you invest in efforts to pair your trademarked name with the descriptive phase. Here a clear line of distinction is drawn between the name and the generic category in which the product falls. A very clear example we can see is of KraftFoods. Its product named Jell-O®brand gelatin clearly differentiates the name and the genre of the product. It made an attempt to prevent it’s product from being genericized at least in the legal sense.

Create usage standards

Creating well-defined guidelines for how your brand name is to be used including how often the designation ™ and ® appears. You need to well educate your consumers, affiliates, employees and licensees on how to talk about your brand. It is something which goes a long way in preventing your trademark by elevating the status and reputations in the mind of the external and internal audiences of the product. A very creative strategy as is deployed by Nescafe over social media platforms is their advertisement which says “Using Nescafe incorrectly makes it hard to swallow”, where a fair attempt has been made to prevent misuse of Nescafe trademark as a generic descriptor of soluble coffee.

Extend the meaning

This might seem a backfiring attempt but it actually helps to heal the trademark. Extending the product line of the trademark which is genericized can help give it a broad sense, just as band-aid did. It introduced foot creams, antiseptic washes, body care products to convey to the masses that the company manufactures more than adhesive bandages.

Reinforce general term

Last but not the least, Reinforce! You need to awake, arise and stop not till you get back your trademark, just as Xerox did. The brand name was becoming a generic noun until it woke up and launched an ongoing media campaign to reclaim their name and reinforced the general term “photocopy”. Similar was the case of Google when people began using Google in the place of web-based search. It, therefore, begun discouraging publications from using the generic expression Google.

Thus trademarks are valuable assets which need an alert proprietor. It is to his will, whether to use it or lose it. As a trademark owner, you have to actively protect your trademarked name. It includes spying upon infringement, genericism, and illegal use, and that’s exactly how the mark earns its strength. Being alert and aware. Is that too much to ask for?

This article has been contributed by Himanshu Jain, CEO of LegalRaasta – an online portal for Trademark Filing and Trademark Renewal in India.