A generic trade mark, a genericized trade mark or proprietary eponym, is a trade mark that has become the generic name for, or synonymous with, a general class of product or service, typically against the trade mark owner’s wishes.
A trade mark typically becomes genericized when it has changed in meaning from being distinctive of a particular brand of product or service to being a generic name for a whole class of product or service.
Examples of some trade marks from the US that have lost their distinctiveness and become generic terms for classes of goods and services are:
- Aqua-lung;
- Aspirin (originally a trade mark of Bayer AG);
- Dry ice (trade marked by the Dry Ice Corporation of America in 1925);
- Escalator (originally a trade mark of Otis Elevator Company);
- Heroin (originally a trade mark of Bayer AG in 1898);
- Kerosene (originally a trade mark of Abraham Gesner in 1852);
- Thermos (originally a trade mark of Thermos GmbH; declared generic in the US in 1963; still a valid trade mark in Australia);
- Yo-yo (Still a Papa’s Toy Co. Ltd. trademark name for a spinning toy in Canada, but declared generic in the US in 1965); and
- Zipper (originally a trade mark of B.F. Goodrich).
Trade mark owners have in the past taken various steps to reduce the risk of their trade mark becoming generic by, for example, associating a generic term for the product or service to be used in descriptive contexts. For instance, Kleenex uses the generic descriptor “facial tissues” when referring to its branded tissues and Velcro uses the generic descriptor “hook-and-loop fasteners” when referring to its famous fastening system.
In instances when a trade mark is at high risk of becoming genericized trade mark owners have needed to take aggressive measures to retain their rights in the trade mark. For instance, Xerox Corporation was able to rescue its house mark XEROX through an extensive public relations campaign advising consumers to “photocopy” rather than “Xerox” documents.
Another example is Johnson & Johnson who 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.” Johnson & Johnson included the term “brand” after their trade mark to help define the word as a trade mark.
Both types of measures taken by Xerox Corporation and Johnson & Johnson have been successful in preventing their trade marks from becoming generic.
It is ironic that trade mark owners try hard to not let their trade mark become too common, a phenomenon that could otherwise be considered a successful move since it would mean that the company has gained an exceptional reputation for the particular trademarked product or service. Nevertheless, the risk of core brands becoming generic is a significant concern for trade mark owners.
The take home message with respect to trade marks becoming generic is that preventative action is better than palliative action. The chances of saving your trade mark from becoming generic early on through a revised marketing strategy or public relations campaign are far better than rescuing your trade mark, if possible, at a later stage.