Under trademark law, a word cannot be a trademark if it is generic. For example, the word "bike" cannot be a trademark for a bicycle because the word is just a standard term for the type of product it represents. Similarly, if a trademark becomes so familiar that it is generic, it can no longer be eligible for protection.
What Does it Mean for a Trademark to Become Generic?
A trademark becomes generic when it no longer identifies a particular manufacturer or source of a product. When a mark becomes so common that it simply signifies the type of goods it represents, it has become generic and can no longer be protected by trademark. Some common brands that over time have become generic include:
Today, all these words represent a type of product, but at one point in time they signified a specific maker of that type of product. Because they became so common and so readily identified with the product, they lost their significance as trademarks.
How Can I Keep My Trademark from Becoming Generic?
The best way to keep a trademark from becoming generic is to take action to discourage people from using the mark in a generic way. For example:
- Xerox " runs ads alerting people to the fact that Xerox" is a brand and not a type of product. They try to discourage people from referring to photocopies as "Xeroxes"
- Similarly, Kleenex – faces similar problems with its product becoming generic. Thus Kleenex – tries to get users to refer to their product as "paper tissue" and not "Kleenex".
If I Take Proper Precautions, Can I Protect My Trademark?
Taking proper precautions can help preserve your trademark, but ultimately the public decides if your product has become generic. Even if you put out ads informing the public that your mark signifies a brand and not a type of product, if the public sees the mark as a signifier of a type of product, you will lose trademark protection. Some common ways courts determine if the public sees a mark as generic are:
- Consumer surveys
- How the mark is used in publications
- How the mark is used in everyday speech
Should I Consult a Lawyer Experienced in Trademarks?
If you are concerned that your mark may be growing generic, you may want to consult an intellectual property lawyer with experience in trademark law. An experienced trademark lawyer will be able to address your concerns and help you find the best way to protect your rights.