What is a Photocopier? Simple Question, but Please Don’t Answer with a Brand Name
Protecting Marks from Consumers: Misuse of Brand Names Can Lead to Trademark Genericide
Unless you are a very attentive trademark attorney, it is likely you as most of us, have at some time used a brand name to refer to a product in a generic manner. For example, facial tissue paper, dark soda, pain killers, and the photocopier, have likely at some time been mistakenly referred to by someone in general using a brand name, though the actual product could be any brand. Why is this considered misuse of brand names and why do companies care?
Trademark Genericide
Companies can spend thousands to millions of dollars on trademark protection. Such trademark rights are important company assets that grow the goodwill of a company and can sometimes even make or break the success of particular brand. Marks are source identifiers that let consumers know what quality to expect from a product and the company behind a brand. So, when a brand name is used as a noun or verb in a generic manner to refer to a certain type of product in general, that is brand name misuse. The identity of the true source gets muddied or lost in the mind of consumers.
The use of marks in a generic manner will, over time, transform the mark or brand into a general term stripping away all trademark rights the owner once had. No amount of expense in developing a household brand name can prevent this. In fact, the more well-known a brand is, the more susceptible it can be to trademark genericide. As consumers come to use a brand name for a particular product and new lesser-known brands pop up in the market, it is easy for consumers to fall back on the household brand name they have come to know to refer to similar third-party products.
Some terms that became generic but were once trademark brands are, for example: trampoline, aspirin, dry ice, kerosene, linoleum, escalator. The owners of these marks had at once come to think up these brand names for unique products, but they did not do enough to protect them from public misuse and the marks became generic, incapable of trademark rights. However, numerous other company brands such as Xerox have been fighting against genericide. Currently, many people use “Uber” as a verb, which is trademark misuse.
How Companies Can Help Prevent Consumer Misuse of Brand Names
Many larger companies have internal policies to help prevent their own marketing departments and employees from trademark misuse by providing guidance on trademark use when creating ads, marketing campaigns, as well as employee use of marks in social media and the like. However, it isn’t typical for companies to immediately think of protection of their brands from consumer misuse, until it starts to happen. Often, preventive measures are less expensive than reactive measures taken to mitigate damages.
Companies can implement into their policies of trademark use additional guidelines such as, policing consumer use in social media and proactive care to always use marks with a corresponding generic term, such as “BRAND cleaner.” Additionally, some companies will go as far as to provide public education on trademark awareness against misuse of brand names. Alternatively, notices on product websites or even product packaging can help.
The extent of protection and expense to do so will depend on the importance of a brand name and the public perception and use of the mark. Experienced trademark attorneys can assist companies with strategies that best fit their situation to work best to prevent trademark genericide and loss of important trademark rights in brand names.
Key Takeaways for Protection from Misuse of Brand Names
Although companies often introduce brands for new products into consumer markets to test the product first, before diving deep into brand protection, there are some steps companies can and should consider, especially as brands become popular in the marketplace:
take care to use the brand distinctively as a source identifier, not as a noun or verb to refer to a product in general;
take steps to police consumer/public use to identify areas of brand misuse or concern sooner rather than later;
set up consumer education media to help consumers stop trademark misuse once it begins; and
seek guidance from a trademark attorney with experience in advising well-known company brands on strategies to protect marks and help prevent trademark genericide.
A video, with a great punch line, that dramatizes a legal deposition and a discussion on the definition of photocopier.
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