When establishing a brand, avoiding a generic trademark is crucial to standing out in a competitive market. A generic trademark is a common term that describes a product or service, making it challenging to protect legally. By crafting a distinctive and memorable brand name, businesses can safeguard their intellectual property rights and enhance brand recognition. To understand the legal implications of a generic trademark and how to avoid the issue, contact the Business Law Group by calling (504) 446-6506.

Understanding Generic Trademarks

Generic trademarks are common terms that cannot be protected under trademark law as they describe a product or service itself rather than distinguishing it from others. This lack of distinctiveness makes it challenging to safeguard intellectual property rights. Examples of generic trademarks include "aspirin" and "escalator," which were once protected trademarks but lost their distinctiveness over time.

According to the United States Patent and Trademark Office (USPTO), generic trademarks are not trademarks, as they refer to common names for a good or service. These marks do not indicate a source and cannot function as a trademark. As a result, generic trademarks are not federally registrable. 

How Do Trademarks Become Generic?

Trademarks become generic through widespread and generic use by the public. When a brand name becomes the common term used to refer to a general class of products, it loses its trademark status. 

Once a trademark becomes generic, it can no longer be owned exclusively by an entity that initially registered it. This is because the public begins to perceive the word or phrase as simply describing the type of product rather than identifying a specific brand. As a result, genericide may have significant effects on companies, including profit loss and expensive rebranding efforts.

Some examples of entities that have watched their brands become generic terms and lose their trademarks include the following.

• Escalator

• Aspirine

• Trampoline

• Flip phone

Strategies To Avoid Trademark Genericization

To avoid generic trademarks, there are key strategies that businesses can employ to maintain the distinctiveness of their brand names.

Choosing a Distinctive Brand Name

When selecting a brand name, entities should opt for a distinctive and unique identifier that sets the business apart from competitors. Avoid generic terms or common descriptive phrases that lack originality. Conduct thorough trademark searches to ensure the chosen name is not already in use and can be legally protected.

Educating the Public Properly

Proper public education about the brand and its offerings is crucial in preventing genericization. Emphasize the specific characteristics and features that make the brand unique. Engage in marketing campaigns that highlight the brand's distinct value proposition to create a strong association between the brand name and its offerings in the minds of consumers.

Legal Aspects of Protecting a Trademark

When it comes to protecting a trademark, several legal aspects must be considered to maintain its distinctiveness in the market. 

Registration and Enforcement

Registering a trademark is a crucial step in protecting it from becoming generic. By obtaining legal rights through registration, a company ensures its brand identity is unique and legally defensible. Enforcement of these rights is equally important, as actively monitoring and taking legal action against infringements can prevent the dilution of the trademark's distinctiveness.

Monitoring and Taking Action

Continuous monitoring of how a trademark is being used in the market can identify any signs of genericide early on. By staying vigilant and promptly addressing instances where the trademark is used generically, companies can protect their brand from losing its distinctiveness. Taking swift legal action against those who misuse or misrepresent the trademark can also reinforce its uniqueness and safeguard it from becoming a generic term. For further information about protecting a trademark and avoiding generic trademarks, reach out to the Business Law Group to learn more about your legal options. 

Case Studies of Brand Success and Failures

To combat genericide, companies have come up with successful brand strategies to protect their goods and services, including the following techniques:

• Clever Branding Approaches: Brands like Google and Xerox have successfully avoided genericide by creating distinct, memorable names that have become synonymous with their products or services.

• Brand Differentiation: Companies like Kleenex have implemented effective branding strategies that highlight the unique features of their products, preventing them from becoming generic terms.

• Lack of Distinctiveness: Brands such as Aspirin and Escalator lost their trademark status due to their names becoming generic terms for the products they represented.

• Failure to Educate: Companies like Thermos and Cellophane failed to educate the public on the distinctiveness of their brands, leading to genericide and loss of trademark protection.

Frequently Asked Questions

It is common to have questions about trademark protection, especially in relation to genericide. Here are some answers to frequently asked questions about generic trademarks:

Can a Generic Trademark Be Trademarked?

To be eligible for a trademark, a word or phrase must be unique compared to words used to describe similar products or services. As a result, generic terms, which refer to an entire class of products or services, do not qualify for trademark protection. Any company can use generic terms in their marketing. However, this does not mean generic terms can never be used in trademarks. Although it is not possible to trademark a generic term on its own, it can be combined with other terms to create a more distinctive mark.

What Is the Difference Between a Generic Trademark and a Descriptive Trademark?

While the terms generic trademark and descriptive trademark are often confused with each other, they are actually quite different. A generic trademark serves as the name for a category of products, while a descriptive trademark signifies a product characteristic. According to the International Trademark Association, descriptive trademarks include signs that clearly describe the service or feature of a product, such as an ingredient, characteristic,  function, or purpose. If a descriptive term earns a secondary meaning, it can be registered as a trademark. 

Contact Business Law Group for Further Information

Protecting a brand from becoming generic is crucial for long-term success. By selecting a unique brand name and educating consumers, companies can maintain their distinctiveness and legal protection.  Legal measures such as trademark registration, enforcement, and monitoring can also play a vital role in safeguarding a brand's identity. For further information about generic trademarks, contact Business Law Group today by calling our experienced Louisiana trademark attorneys at  (504)446-6506.