Written By: Stephanie Williams (IP Lawyer)
One measure of success used by brand owners is the extent to which their trademarks are well-known. But brand owners beware! If trademarks are too successful, they might be at risk of genericization and loss of trademark rights.
What is Trademark Genericization?
Genericization is when a brand becomes synonymous with the general class of products or services it represents. Essentially, genericization is when a trademark loses its distinctiveness and morphs into a common term for an entire category.
Many terms that people commonly use in their day-to-day lives are trademarks that have lost their distinctiveness and become genericized. For example, in some jurisdictions, the brand “Aspirin” lost its trademark rights as it became a generic term for acetylsalicylic acid pain relievers. In the United States, the same fate befell brands such as “Escalator” and “Yo-Yo”, now used universally for moving staircases and spinning toys, respectively. Brands that should be wary of their trademarks becoming genericized include Band-Aid®, Kleenex®, Google®, and Rollerblade®.
The Dangers of Genericization
- Loss of Trademark Rights: Once a trademark becomes generic, its owner risks losing the exclusive rights to use it. This means anyone can use the trademark, diluting the brand’s uniqueness, and the trademark might be expunged from the register.
- Brand Erosion: Genericization erodes the distinctiveness and value associated with a brand. A once-unique identifier may become indistinguishable from competitors, leading to a loss of consumer recognition and loyalty.
- Legal Vulnerability: Generic trademarks are challenging to protect legally. Courts are less likely to defend a brand that has fallen prey to genericization and competitors might seek expungement of a genericized trademark.
Proper Trademark Use Reduces Risk of Genericization
Proper use of your trademark is the first line of defense against genericization. Follow the tips below to make sure you are minimizing the risks of your trademark becoming genericized.
Use your Trademark as an Adjective, Not a Noun:
- Incorrect: “I need a Kleenex.”
- Correct: “I need a Kleenex® tissue.”
Avoid Generic Language:
Instead of using your trademark as a generic term for the product or service, highlight its distinct features:
- Incorrect: “Hand me a Band-Aid.”
- Correct: “Hand me a Band-Aid® adhesive bandage.”
Be Mindful in Advertising:
Ensure that advertisements emphasize your trademark as an adjective describing the product, steering clear of generic use.
Regular and Correct Usage:
Consistently and correctly use your trademark in all communications, keeping it top-of-mind for consumers. Always use the appropriate trademark designating symbols: ™ for unregistered marks and ® for registered marks.
Enforce Proper Usage:
Educate employees, partners, and the public about the correct usage of your trademark. Implement guidelines to maintain its integrity.
Register your trademark to solidify legal protections. Regularly monitor and enforce correct usage of your trademark to prevent dilution of your rights.
What to do if your Trademark is at Risk of Genericization
Some brands with trademarks at risk of genericide have launched anti-genericide campaigns to raise brand awareness and encourage proper use of their trademarks among consumers. Examples of these anti-genericide campaigns include the humorous “Don’t Say Velcro” music video by Velcro® and the social media campaign launched by Kleenex® in late 2022.
If done in a way that appeals to consumers, anti-genericization campaigns can help to reduce the risks of improper use of trademarks. If you are worried that your brand is at risk of genericization, consider a creative anti-genericide campaign to educate consumers on the proper usage of your trademark.
Ensuring proper usage of your trademark is key to minimizing risk of trademark genericide. By following our tips above, you will be well positioned to protect your rights!
If you have questions about proper trademark use or the risks of genericization, do not hesitate to contact one of our experts today!