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DANA B. TASCHNER

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Genericized trademark

 
 

A genericized trademark (Commonwealth English genericised trade mark or generic trade mark ) is a trademark or brand name which has become synonymous with a particular type of product or service, to the extent that it often replaces the formal term for the product or service in colloquial usage.

One consequence of a trademark becoming generic is that the exclusive rights which may attach to the use or registration of the trademark can no longer be legally enforced. This process of genericide may result where the trademark owner does not maintain or enforce such rights (eg. by using the mark, or through infringement action). As the essential function of a trademark properly so-called is to uniquely identify the commercial source or origin of a product or service, a generic trademark is fundamentally a trademark which can no longer perform this function. Therefore a trademark may only be considered 'generic' at law if a court rules to this effect.

By comparison, what the general public may consider to be a genericized trademark is more difficult to reliably define, such that a very broad range of trademarks are often characterised as generic, which often leads to uncertainty as to what the term actually encompasses. Although many well known trademarks are often used in a generic manner, it does not necessarily follow that such trademarks have become 'genericized', particularly if the marks continue to fulfill the trademark function, and the mark owners maintain and enforce their rights.

As generic use of a trademark is often related to how well-known a trademark has become, some trademark owners hope that their marks will achieve genericity, or overlook a certain level of generic use, despite the inherent risk of generic use upon the maintenance of strong trademark rights.

Legal protection

Trademarks, unlike copyrights and patents, must be actively used and defended. A copyright or patent holder may (in some cases) simply "sit on" his creation and prevent its use by others, but a trademark owner claiming and even registering a trademark that fails to make active use of it, or fails to defend it against infringement may lose the exclusive right to use it. Further, if a court rules that a formerly trademarked term has become so successful in gaining mind share and becomes "generic" through common use (and so the average consumer doesn't realize it is a trademark), it may also be ruled unprotectable.

The genericization of a trademark sometimes results because the trademark is the name of something protected by other intellectual property rights, especially patents. Since the patent gives an inventor the exclusive right to manufacture a product for a period of time, consumers will only know that product by the inventor's trademark for the duration of the patent. When the patent expires, the inventor's competitors begin producing their own versions, but using the inventor's trademark to name their product because this is the name by which the general public identifies such items. (This is also the rationale for not protecting a generic trademark, because that would effectively allow the inventor to extend patent protection indefinitely.) One patent that lost its trademark status in this way is Thomas Edison's mimeograph.

Trademark owners should never use the trademark as a verb or noun, implying the word is generic. Likewise, using the trademark as a plural or possessive (i.e. a noun) will imply the trademark is generic (unless the mark itself is possessive or plural, e.g., "Friendly's" restaurants). If the trademark is associated with a patent, the patent holder may need to emphasize a descriptive term for the product that is distinguished from the trademark as a brand name.

Where a trademark is used generically a trademark owner may need to take special proactive measures in order to retain exclusive rights to the trademark. Xerox provides one successful example of a company which was able to prevent the genericide of its core trademark through an extensive marketing campaign advising consumers to "photocopy" instead of "Xeroxing" documents. Another common practice amongst trademark owners is to follow their trademark with the word "brand" to help define the word as a trademark. Johnson & Johnson changed the lyrics of their BAND-AID television commercial jingle from, "I am stuck on BAND-AIDs, 'cause BAND-AID's stuck on me " to "I am stuck on BAND-AID brand, 'cause BAND-AID's stuck on me. "

European Union

Beginning in 2003 the European Union has sought to restrict the use of region names as trademarks for speciality food and drink to manufacturers from the region. Extending these restrictions outside Europe is controversial because regional names that are trademarks within Europe are often considered generic in other countries. It is made even more difficult where regional names have been trademarked outside Europe, such as Parma ham, which is trademarked in Canada by a Canadian manufacturer, preventing manufacturers from Parma in Italy from using their own name. Other products affected include Champagne, Bordeaux and many other wine names, Roquefort, Parmesan and Feta cheese, and Scotch whisky. In the 1990s the Parma consortium successfully sued the Asdasupermarket chain to prevent it using the description Parma ham on prosciutto produced in Parma but sliced outside the region. See Protected Designation of Origin.

Disclaimer

Please note that in no event should the appearance on this page of a trademarked (or formerly trademarked) name be construed as affecting any trademark rights a holder might possess in such a name; this page is intended to illustrate the problem rights holders face and have faced through history in protecting their marks, not to contribute to said problem. This page should not be considered authoritative with respect to whether a name is still legally trademarked in any particular jurisdiction.

Former trademarks which have become generic

The following list comprises those marks which were originally created and used as trademarks, but which have subsequently become synonymous with the common name of the relevant product or service (ie. they are genericized trademarks properly so called).

  • Allen wrench (or Allen Key)- hexagonalscrewdriver (A rarity among generic words, 'Allen wrench' is no longer trademarked, but is still capitalized because it is named after a company)
  • aspirin - ASA (acetylsalicylic acid; still trademarked in many places around the world by Bayer, but not in the United States)
  • bikini - two-piece swimsuit for women
  • BX - flexible, metal-armored electrical cable
  • cellophane - transparent paper
  • celluloid - film material
  • cola - soft drink; genericized part of Coca-Cola
  • Comptometer - adding machine
  • dry ice - frozen carbon dioxide
  • doona - derived from a trademark, but not a trademark in itself (and the trademarking company no longer exists) - duvet (used in Australia, particularly the south east)
  • escalator - moving staircase
  • gramophone - record player
  • granola - oat and fruit bar
  • hoagie - sandwich
  • heroin - narcotic drug; originally registered by Bayer as a pain reliever
  • jungle gym - play structure (from 'Junglegym')
  • kiwi fruit - formerly known as "Chinese gooseberries"; new name not trademarked, but Zespri trademark later introduced for New Zealand kiwis
  • LP - long playing record
  • linoleum - floor covering
  • merry widow - strapless corset
  • mimeograph - reproduction machine
  • photostat - reproduction machine
  • plasterboard - formed gypsum building material
  • pianola - player piano
  • pogo stick - bouncing stick (trademark was one word, 'Pogo')
  • shredded wheat - cereal literally made of shredded wheat formed into pillow-shaped biscuits
  • spandex - polyurethane fiber; an anagram of "expands"; DuPont later introduced new trademark, Lycra
  • tabloid - originally a type of medication
  • tarmac (or tarmacadam) - road surfacing; the word tarmac is sometimes used to refer to airport runways, but properly it is the hardstanding or parking area that is the tarmac
  • Toll House cookie - chocolate-chip cookie. Nestlé lost trademark rights in the 1970s
  • trampoline - sports equipment
  • Webster's Dictionary - the publishers with the strongest link to the original are Merriam-Webster, but they have a trademark only on "Merriam-Webster", and other dictionaries are legally published as "Webster's Dictionary"
  • windsurfer - sailboard
  • yo-yo - toy
  • zeppelin - dirigible
  • ZIP Code - postal code (US)
  • zipper - zip fastener

Former and current trademarks which are often used generically

The following list comprises those marks which were originally created and used as trademarks (and which may continue in use as trademarks, and be actively enforced by their trademark owners), but which are generally acknowledged as becoming generic due to increasing generic usage.

Whether a mark appears in this list is therefore a subjective assessment, as some marks may already have become generic, whereas others may not be accepted as being generic. However all marks in the list are used generically to some extent.

  • Airfix (UK) - plastic model
  • Aqua-Lung - Scuba equipment
  • Artex - textured interior wall and ceiling plaster
  • AstroTurf - artificial grass produced by SRI Sports
  • Baggies - food bags
  • Bake-off - any kind of contest where a product is created from scratch; although registered as a trademark by Pillsbury, the term is commonly used in computer science programming competitions
  • Band-Aid - adhesive bandage; trademarked by Johnson&Johnson
  • Breathalyzer - breath alcohol analyzer made by Draeger Safety, Inc.
  • Bubble Wrap - air-filled plastic packing material from Sealed Air
  • BVDs - men's underwear
  • Chap Stick - lip balm manufactured by AHRobins
  • Cheetos - puffed cheese snacks made by Frito Lay
  • Ceefax - viewdata service (UK)
  • Coke (short for Coca-cola) - cola, see Soft drink naming conventions
  • Cool Whip - artificial whipped dessert topping from Kraft Foods
  • Crock-pot - slow cooker sold by Rival Industries
  • Depends - adult disposable diapers made by Kimberly Clark
  • Deep Freeze - chest freezer
  • Dictaphone - dictation recorder from the eponymous company
  • Dixie cups - disposable bathroom cups, also packaged ice cream cups, which according to Toilet Paper World
  • Drizabone - waterproof overcoat (Australian usage)
  • Dumpster - large trash can
  • Erector Set - US metal construction toy, name now owned by Meccano
  • Eskimo Pie - chocolate covered ice cream bar
  • Esky - cooler box (Australian usage), from Eskimo brand
  • Ethernet - IEEE 802.3LAN protocol
  • to FedEx - to courier something (a verb), ie I need to FedEx this parcel
  • Fiberglass - glass wool or glass fiber reinforced plastic
  • Firewire - IEEE 1394 connection
  • Frialator - A deep fryer
  • Freon - fluorocarbon-based refrigerants, propellants, etc.
  • Friend - spring loaded camming device
  • fridgidaire - "fridge", refrigerator
  • Frisbee - flying disc
  • Formica (plastic) - laminated plastic surface
  • Glucometer - blood glucose meter
  • GoKart - mini racing cars
  • Google - search engine; especially as a verb, to search the web with Google. In Wikipedic culture, Wikipedians use the term "google test" when they try to see if an article name is mainstream.
  • Hoover - vacuum cleaner (in Britain and Commonwealth countries)
  • Hula Hoop - dancing ring
  • Jacuzzi - whirlpool bath
  • Jaws of Life - rescue tool
  • JCB - hydraulic digger
  • Jeep - very small, angular four-wheel drive truck now manufactured by Daimler Chrysler
  • Jet Ski - motorized watercraft
  • Jetway - Moveable bridges used at airports
  • Jell-O - gelatin dessert, or jelly in Britain and Commonwealth countries
  • JumboTron - large stadium display screens built by Sony
  • Kevlar - Aramid fiber from DuPont
  • Kleenex - packaged, folded tissue paper
  • Kool-Aid - artificially "fruit" flavored and colored powder that makes a soft drink
  • Krazy Glue - cyanoacrylateadhesive
  • Laundromat - self-service laundry
  • LearJet - executive aircraft manufactured by Bombardier Industries
  • LEGO - a toy with interlocking blocks
  • Liquid Paper - paper correction fluid
  • Lycra - a brand of spandex
  • Magic Marker - felt-tip marker
  • Masonite - fiberboard
  • Mickey Mouse - cartoon character (has generic slang usage to describe something silly or trivial: "that's so mickey-mouse")
  • Milk-Bone - dog treats
  • Moxie - early 20th century soft drink, now used generically to mean energy, courage, or know-how
  • Murphy bed - a bed that folds up against the wall
  • Muzak - background music
  • Mylar - biaxially-oriented polyethylene terephthalate (BOPET) polyester film
  • Nikko pen - broad, permanent, felt pen (Australian usage)
  • Nilla Wafers - vanillawafer cookies
  • Nintendo - home console video games
  • Ouija - letters on a board game
  • Pablum - baby cereal
  • Palm Pilot or simply Palm - handheld computer, generically personal digital assistant
  • Pampers - disposable diapers for babies and toddlers
  • Perspex (UK) - Clear plastic ( acrylic) sheeting
  • PG - parental guidance movie rating as are PG 13, G
  • Phillips Screwdriver - Screwdriver with a cross-pointed drive hole.
  • Photoshop - image editing software from Adobe Systems, also as a verb, to digitally edit an image
  • Ping-Pong - table tennis
  • Playbill - theatre program
  • Plexiglas - clear plastic sheets
  • Porta Potti - portable toilet
  • Portakabin (UK) - relocatable buildings
  • Post-It - self-adhering notepaper
  • Polaroid - instant photography
  • Popsicle - quiescently frozen confection
  • Prozac - antidepressant
  • Purell - hand sanitizer
  • Q-tips - cotton swabs
  • Quaalude - drug methaqualone
  • Quonset hut - easily constructed curved wall building similar to a Nissen hut
  • Rawlplug - plug to give screws something to bite on (invented by J J Rawlings in 1919)
  • Realtor - real estate agent
  • Ribena - blackcurrant cordial
  • Rolodex - rotary card file
  • Rollerblade - inline roller skates
  • Roquefort - type of cheese
  • Rubbermaid - plastic food storage containers
  • Saran or Saranwrap - transparent plastic wrap
  • Scotch tape - transparent adhesive tape
  • Sellotape - transparent adhesive tape (Britain and Commonwealth countries)
  • Sharpie - marking and writing pens
  • SHEETROCK - plasterboard/drywall
  • Shop-Vac - wet/dry vacuum
  • Skidoo - snowmobile
  • Skivvies - underwear
  • Spackle - wall filling compound
  • SPAM - packaged meat (in lowercase form, used as generic word for junk e-mail)
  • Spectravision - on-demand or pay-per-view programming usually available in hotels
  • Speedo - tight-fitting swimsuit (usually for males)
  • Stayfree - feminine hygiene pads
  • Stetson - cowboy hat
  • Styrofoam - polystyrene filler
  • Superglue - cyanoacrylate adhesive
  • Super Hero - trademarked jointly by Marvel and DC Comics, though usually regarded as a comic-book genre
  • Tabasco - hot spicy sauce
  • Tampax - tampons
  • Tannoy - Public address system (UK)
  • Taser - electric shock stun gun
  • TelePrompTer - electronic speech notes
  • Teletext - viewdata service (UK)
  • Teletype - printing telgraph apparatus (AT&T)
  • Teflon - non-stick surface
  • Thermos - vacuum flask; though it was declared generic in the USA in 1963
  • Tippex - correction fluid
  • TiVo (US/UK) - digital video recorder
  • Transitions - photochromatic eye lenses
  • Trapper - 3-ring binder
  • Trojan - condom
  • Tupperware - food storage ware
  • Tylenol - acetaminophen tablets
  • UNIX - an operating system (NOTE: The use of this term as a genericized trademark is legally questionable, and has led to lawsuits between The Open Group, who own the trademark, and uncertified operating systems that advertise themselves as "Unix-based", such as Mac OS X)
  • Valium - tranquillizer
  • Vans - a kind of training shoe
  • Vaseline - petroleum jelly
  • Velcro - hook and loop fasteners
  • Walkman - portable tape/music player
  • WD-40 - penetrating oil
  • Weetabix - a breakfast cereal in the form of wheat biscuits
  • Windbreaker - light jacket
  • Windex - spray glass cleaner
  • Wite-Out - correction fluid
  • Xeriscape - water conservation landscaping
  • Xerox - photocopy machine. Sometimes used as a verb, i.e. "xerox two copies for me"
  • Zamboni - ice resurfacing machine
  • Ziploc bags - zipper storage bags
  • Zodiac - inflatable boat

Pharmaceutical and medical trademarks

As pharmaceutical products are often marketed under different names in different countries, sometimes these different trademarks may become generic in each separate country, but not in all countries (ie. a trademark which has become generic in one country for a specific product may not be generic for the same product in another country). The following list provides examples of such marks.

  • Advil - Ibuprofen (UK & USA)
  • Alka-Seltzer - indigestion drug (UK & USA)
  • BAND-AID - self adhesive bandage (has slang usages such as "a band-aid solution" (ie. a temporary solution); was also the name of a charity group of musicians that produced a benefit song in the 1980s, see Band Aid (band)
  • Benadryl - antihistamine drug (UK)
  • Elastoplast - self adhesive bandage (UK)
  • Lemsip - lemon-flavoured cold & flu powder (UK)
  • Nicorette - smoking gum (UK)
  • Nurofen - Ibuprofen (UK)
  • Rennie - indigestion drug
  • Solpadeine - Co-codamol (UK)
  • Viagra - sexual enhancement drug


Wikipedia article (the free online encyclopedia) reproduced under the terms of the GNU (General Public License) Free Documentation License.

 
 
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