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Austin TX Business Law Blog

Friday, April 20, 2018

Keep Your Brand From Becoming Generic

How can I protect my trademark becoming generic?

As your trademark grows in popularity, it will become important to protect it from genericide. Genericide happens when a brand becomes so well known that it morphs into a product category. Examples of now generic brands include aspirin and escalators. Once a trademark becomes generic, it loses all protection. It becomes vital for the makers of a strong trademark to police the mark so that it avoids genericide.

The Case of Google

A federal court recently examined the question of whether Google has become generic. The case began when an individual acquired several domain names with the term “google.” Google filed an objection, and the domain name holder countered by claiming Google has become a generic term used to describe the act of internet searching.

An Arizona federal court rejected this stance. The court found that the defendant did not present sufficient evidence that google was primarily a generic term. The court held that it is not enough to show that sometimes the public uses a trademark as the name, rather than the brand. For now, Google’s brand remains protected, but it will likely want to step up efforts to protect the brand from becoming generic.

Avoiding Genericide

Generic terms cannot be protected because everyone has the right to use generic terms to describe products. Companies cannot add the suffix dot-com to a generic name to avoid genericide. Often, a company will have a popular trademark, only to later lose the trademark after it is declared generic. Even the strongest of trademarks are at risk of becoming generic as the trademark starts to be used to describe a group of products or services, rather than the particular product.

Companies can avoid genericide using several strategies:

  • Develop guidelines for the use of your trademark—your company should decide from the outset how employees and the public should use the trademark. You should avoid ever using the trademark as a verb or noun, but rather as an adjective followed by a generic noun.

  • Use a descriptor after the trademark—by following your trademark with a descriptive term, you can protect your brand by making it clear the trademark should not be substituted for the generic name.

  • Protect your trademark from infringement—often, genericide occurs when competitors start to use your brand name when advertising their products. You will want to carefully police your brand and ensure action is taken when others attempt to improperly use your trademark.

Consult with a trademark attorney for more assistance with registering and protecting your trademark.


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