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A generic trademark, also known as a genericized trademark or proprietary eponym, is a
trademark A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from others ...
or
brand name A brand is a name, term, design, symbol or any other feature that distinguishes one seller's good or service from those of other sellers. Brands are used in business, marketing, and advertising for recognition and, importantly, to create an ...
that, because of its popularity or significance, has become the
generic term Trademark distinctiveness is an important concept in the law governing trademarks and service marks. A trademark may be eligible for registration, or registrable, if it performs the essential trademark function, and has distinctive character. Re ...
for, or synonymous with, a general class of
products Product may refer to: Business * Product (business), an item that serves as a solution to a specific consumer problem. * Product (project management), a deliverable or set of deliverables that contribute to a business solution Mathematics * Prod ...
or
services Service may refer to: Activities * Administrative service, a required part of the workload of university faculty * Civil service, the body of employees of a government * Community service, volunteer service for the benefit of a community or a p ...
, usually against the intentions of the trademark's owner. A trademark is said to become ''genericized''—or, informally, to have suffered ''genericide''—when it begins as a distinctive product identifier but changes in meaning to become generic. This typically happens when the products or services which the trademark is associated with have acquired substantial
market dominance Market dominance describes when a firm can control markets. A dominant firm possesses the power to affect competition and influence market price. A firms' dominance is a measure of the power of a brand, product, service, or firm, relative to ...
or
mind share Mind share relates to the development of consumer awareness or popularity, and is one of the main objectives of advertising and promotion. When people think of examples of a product type or category, they usually think of a limited number of bra ...
, such that the primary meaning of the genericized trademark becomes the product or service itself rather than an indication of source for the product or service. A trademark thus popularised has its legal protection at risk in some countries such as the United States and United Kingdom, as its
intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, c ...
rights in the trademark may be lost and competitors enabled to use the genericized trademark to describe their similar products, unless the owner of an affected trademark works sufficiently to correct and prevent such broad use.


In subpopulations

Genericization or "loss of secondary meaning" may be prevalent among either the general population or just a subpopulation, such as among people who work in a particular industry. Some examples of the latter type from the vocabulary of physicians include the names Luer-Lok (Luer lock), Phoroptor (phoropter), and Port-a-Cath (portacath), which have genericized
mind share Mind share relates to the development of consumer awareness or popularity, and is one of the main objectives of advertising and promotion. When people think of examples of a product type or category, they usually think of a limited number of bra ...
(among
physicians A physician (American English), medical practitioner (Commonwealth English), medical doctor, or simply doctor, is a health professional who practices medicine, which is concerned with promoting, maintaining or restoring health through th ...
) because no alternative generic name for the idea is widely used, and as a result, users may not realize that the term is a brand name rather than a medical eponym or generic-etymology term. Most often, genericization occurs because of heavy advertising that fails to provide an alternative generic name or that uses the trademark in similar fashion to
generic term Trademark distinctiveness is an important concept in the law governing trademarks and service marks. A trademark may be eligible for registration, or registrable, if it performs the essential trademark function, and has distinctive character. Re ...
s. Thus, when the
Otis Elevator Company Otis Worldwide Corporation ( branded as the Otis Elevator Company, its former legal name) is an American company that develops, manufactures and markets elevators, escalators, moving walkways, and related equipment. Based in Farmington, Connec ...
advertised that it offered "the latest in elevator and escalator design," it was using the well-known generic term "elevator" and Otis' trademark "Escalator" for moving staircases in the same way. The United States Patent and Trademark Office and domestic courts concluded that, if Otis used their trademark in that generic way, they could not stop Westinghouse from calling its moving staircases "escalators", and a valuable trademark was lost through ''genericization''.


In pharmaceuticals

The pharmaceutical industry affords some protection from genericization of trade names with the modern practice of assigning a nonproprietary name for a drug based upon chemical structure. Brand-name drugs have well-known nonproprietary names from the beginning of their commercial existence, even while still under patent, preventing the aforementioned problem of "no alternative generic name for the idea readily coming to mind". For example, even when Abilify was new, its nonproprietary name,
aripiprazole Aripiprazole, sold under the brand names Abilify and Aristada among others, is an atypical antipsychotic. It is primarily used in the treatment of schizophrenia and bipolar disorder. Other uses include as an add-on treatment in major depressiv ...
, was well documented. Another example is
warfarin Warfarin, sold under the brand name Coumadin among others, is a medication that is used as an anticoagulant (blood thinner). It is commonly used to prevent blood clots such as deep vein thrombosis and pulmonary embolism, and to prevent str ...
, which was known as an ingredient in rat poison before it was approved for human use under the brand name of Coumadin. Examples of genericization before the modern system of
generic drug A generic drug is a pharmaceutical drug that contains the same chemical substance as a drug that was originally protected by chemical patents. Generic drugs are allowed for sale after the patents on the original drugs expire. Because the active c ...
s include
aspirin Aspirin, also known as acetylsalicylic acid (ASA), is a nonsteroidal anti-inflammatory drug (NSAID) used to reduce pain, fever, and/or inflammation, and as an antithrombotic. Specific inflammatory conditions which aspirin is used to treat in ...
, introduced to the market in 1897, and
heroin Heroin, also known as diacetylmorphine and diamorphine among other names, is a potent opioid mainly used as a recreational drug for its euphoric effects. Medical grade diamorphine is used as a pure hydrochloride salt. Various white and brown ...
, introduced in 1898. Both were originally trademarks of
Bayer AG Bayer AG (, commonly pronounced ; ) is a German multinational pharmaceutical and biotechnology company and one of the largest pharmaceutical companies in the world. Headquartered in Leverkusen, Bayer's areas of business include pharmaceutica ...
. However, U.S. court rulings in 1918 and 1921 found the terms to be genericized, stating the company's failure to reinforce the brand's connection with their product as the reason. A different sense of the word ''genericized'' in the pharmaceutical industry refers to products whose patent protection has expired. For example,
Lipitor Atorvastatin is a statin medication used to prevent cardiovascular disease in those at high risk and to treat abnormal lipid levels. For the prevention of cardiovascular disease, statins are a first-line treatment. It is taken by mouth. Common ...
was genericized in the U.S. when the first competing generic version was approved by the FDA in November 2011. In this same context, the term ''genericization'' refers to the process of a brand drug losing market exclusivity to generics.


Trademark erosion

Trademark erosion, or genericization, is a special case of
antonomasia In rhetoric, antonomasia is a kind of metonymy in which an epithet or phrase takes the place of a proper name, such as "the little corporal" for Napoleon I; or, conversely, the use of a proper name as an archetypal name, to express a generic idea ...
related to
trademark A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from others ...
s. It happens when a trademark becomes so common that it starts being used as a common name ''and'' the original company has failed to prevent such use. Once it has become an appellative, the word cannot be registered any more; this is why companies try hard not to let their trademark become too common, a phenomenon that could otherwise be considered a successful move since it would mean that the company gained an exceptional recognition. An example of trademark erosion is the verb “to hoover” (used with the meaning of “vacuum cleaning”), originated from the Hoover company brand name.
Nintendo is a Japanese multinational video game company headquartered in Kyoto, Japan. It develops video games and video game consoles. Nintendo was founded in 1889 as by craftsman Fusajiro Yamauchi and originally produced handmade playing cards. ...
is an example of a brand that successfully fought trademark erosion, having managed to replace excessive use of its name by the then-neologism
game console A video game console is an electronic device that outputs a video signal or image to display a video game that can be played with a game controller. These may be home consoles, which are generally placed in a permanent location connected to a ...
.


Legal concepts

Whether or not a mark is popularly identified as genericized, the owner of the mark may still be able to enforce the proprietary rights that attach to the use or registration of the mark, as long as the mark continues to exclusively identify the owner as the commercial origin of the applicable products or services. If the mark does not perform this essential function and it is no longer possible to legally enforce rights in relation to the mark, the mark may have become generic. In many legal systems (e.g., in the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territo ...
but not in Germany) a generic mark forms part of the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired, ...
and can be commercially exploited by anyone. Nevertheless, there exists the possibility of a trademark becoming a revocable generic term in German (and European) trademark law. The process by which trademark rights are diminished or lost as a result of common use in the marketplace is known as ''genericization''. This process typically occurs over a period of time in which a mark is not used as a trademark (i.e., where it is not used to exclusively identify the products or services of a particular business), where a mark falls into disuse entirely, or where the trademark owner does not enforce its rights through actions for
passing off Passing off is a common law tort which can be used to enforce unregistered trade mark rights. The tort of passing off protects the goodwill of a trader from misrepresentation. The law of passing off prevents one trader from misrepresenting go ...
or
trademark infringement Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the licence). Infringement may ...
. One risk factor that may lead to genericization is the use of a trademark as a
verb A verb () is a word ( part of speech) that in syntax generally conveys an action (''bring'', ''read'', ''walk'', ''run'', ''learn''), an occurrence (''happen'', ''become''), or a state of being (''be'', ''exist'', ''stand''). In the usual descri ...
,
plural The plural (sometimes abbreviated pl., pl, or ), in many languages, is one of the values of the grammatical category of number. The plural of a noun typically denotes a quantity greater than the default quantity represented by that noun. This d ...
or
possessive A possessive or ktetic form ( abbreviated or ; from la, possessivus; grc, κτητικός, translit=ktētikós) is a word or grammatical construction used to indicate a relationship of possession in a broad sense. This can include strict own ...
, unless the mark itself is possessive or plural (e.g., "Friendly's" restaurants). However, in highly inflected languages, a tradename may have to carry case endings in usage. An example is Finnish, where "''
Microsoft Microsoft Corporation is an American multinational technology corporation producing computer software, consumer electronics, personal computers, and related services headquartered at the Microsoft Redmond campus located in Redmond, Washingt ...
in''" is the
genitive case In grammar, the genitive case ( abbreviated ) is the grammatical case that marks a word, usually a noun, as modifying another word, also usually a noun—thus indicating an attributive relationship of one noun to the other noun. A genitive can a ...
and "''
Facebook Facebook is an online social media and social networking service owned by American company Meta Platforms. Founded in 2004 by Mark Zuckerberg with fellow Harvard College students and roommates Eduardo Saverin, Andrew McCollum, Dustin Mosk ...
ista''" is the
elative case In grammar, the elative case (abbreviated ; from la, efferre "to bring or carry out") is a locative grammatical case with the basic meaning "out of". Usage Uralic languages In Finnish, the elative is typically formed by adding ", in Estonian b ...
.


Avoiding genericization

Generic use of a trademark presents an inherent risk to the effective enforcement of trademark rights and may ultimately lead to genericization. Trademark owners may take various steps to reduce the risk, including educating businesses and consumers on appropriate trademark use, avoiding use of their marks in a generic manner, and systematically and effectively enforcing their trademark rights. If a trademark is associated with a new
invention An invention is a unique or novel device, method, composition, idea or process. An invention may be an improvement upon a machine, product, or process for increasing efficiency or lowering cost. It may also be an entirely new concept. If an i ...
, the trademark owner may also consider developing a generic term for the product to be used in descriptive contexts, to avoid inappropriate use of the "house" mark. Such a term is called a ''generic descriptor'', and is frequently used immediately after the trademark to provide a description of the product or service. For example, "
Kleenex Kleenex is a brand name for a variety of paper-based products such as facial tissue, bathroom tissue, paper towels, tampons, and diapers. Often used informally as a genericized trademark for facial tissue in the United States and Canada, the na ...
tissues" ("facial tissues" being the generic descriptor) or "
Velcro Velcro, officially known as Velcro IP Holdings LLC and trading as Velcro Companies, is a British privately held company, founded by Swiss electrical engineer George de Mestral in the 1950s. It is the original manufacturer of hook-and-loop fasten ...
-brand fasteners" for Velcro brand name hook-and-loop fasteners. Another common practice among trademark owners is to follow their trademark with the word ''brand'' to help define the word as a trademark.
Johnson & Johnson Johnson & Johnson (J&J) is an American multinational corporation founded in 1886 that develops medical devices, pharmaceuticals, and consumer packaged goods. Its common stock is a component of the Dow Jones Industrial Average and the company ...
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."
Google Google LLC () is an American multinational technology company focusing on search engine technology, online advertising, cloud computing, computer software, quantum computing, e-commerce, artificial intelligence, and consumer electronics. I ...
has gone to lengths to prevent this process, discouraging publications from using the term '
googling Owing to the dominance of the Google search engine, to ''google'' has become a transitive verb. The neologism commonly refers to searching for information on the World Wide Web using the Google search engine. The American Dialect Society chose ...
' in reference to Web searches. In 2006, both the '' Oxford English Dictionary'' and the '' Merriam Webster Collegiate Dictionary'' struck a balance between acknowledging widespread use of the verb coinage and preserving the particular search engine's association with the coinage, defining ''
google Google LLC () is an American multinational technology company focusing on search engine technology, online advertising, cloud computing, computer software, quantum computing, e-commerce, artificial intelligence, and consumer electronics. I ...
'' (all lower case, with -''le'' ending) as a verb meaning "use the Google search engine to obtain information on the Internet". Where a trademark is used generically, a trademark owner may need to take aggressive measures to retain
exclusive right In Anglo-Saxon law, an exclusive right, or exclusivity, is a de facto, non-tangible prerogative existing in law (that is, the power or, in a wider sense, right) to perform an action or acquire a benefit and to permit or deny others the right to ...
s to the trademark.
Xerox Corporation Xerox Holdings Corporation (; also known simply as Xerox) is an American corporation that sells print and digital document products and services in more than 160 countries. Xerox is headquartered in Norwalk, Connecticut (having moved from Stamf ...
attempted to prevent the genericization of its core trademark through an extensive public relations campaign advising consumers to "
photocopy A photocopier (also called copier or copy machine, and formerly Xerox machine, the generic trademark) is a machine that makes copies of documents and other visual images onto paper or plastic film quickly and cheaply. Most modern photocopiers u ...
" instead of "xerox" documents. One example of an active effort to prevent the genericization of a trademark was that of the Lego Company, which printed in manuals in the 1970s and 1980s a request to customers that they call the company's interlocking plastic building blocks Lego bricks', 'blocks' or 'toys', and not 'Legos'." While this went largely unheeded, and many children and adults in the U.S. referred to and continue to refer to the pieces as "Legos", use of the deprecated term remained largely confined to the Lego Company's own products – and not, for example, to Tyco's competing and interchangeable product – so genericization of the Lego trademark did not occur.
Adobe Systems Adobe Inc. ( ), originally called Adobe Systems Incorporated, is an American multinational computer software company incorporated in Delaware and headquartered in San Jose, California. It has historically specialized in software for the crea ...
is working to prevent the genericization of their trademarks, such as
Photoshop Adobe Photoshop is a raster graphics editor developed and published by Adobe Inc. for Windows and macOS. It was originally created in 1988 by Thomas and John Knoll. Since then, the software has become the industry standard not only in raster ...
, but has had mixed success. This is shown via recurring use of the adjective "photoshopped", or the shortened version "shopped", throughout the Internet and mass media.


Protected designation of origin

Since 2003, the
European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been ...
has actively sought to restrict the use of
geographical indication A geographical indication (GI) is a name or sign used on products which corresponds to a specific geographical location or origin (e.g., a town, region, or country). The use of a geographical indication, as an indication of the product's source, ...
s by third parties outside the EU by enforcing laws regarding "
protected designation of origin The protected designation of origin (PDO) is a type of geographical indication of the European Union and the United Kingdom aimed at preserving the designations of origin of food-related products. The designation was created in 1992 and its main ...
". Although a geographical indication for specialty food or drink may be generic, it is not a trademark because it does not serve to identify exclusively a specific commercial enterprise and therefore cannot constitute a genericized trademark. The extension of protection for geographical indications is somewhat controversial. A geographical indication may have been registered as a trademark elsewhere; for example, if "Parma Ham" was part of a trademark registered in Canada by a Canadian manufacturer, then ham manufacturers in
Parma Parma (; egl, Pärma, ) is a city in the northern Italian region of Emilia-Romagna known for its architecture, music, art, prosciutto (ham), cheese and surrounding countryside. With a population of 198,292 inhabitants, Parma is the second most ...
, Italy, might be unable to use this name in Canada. Wines (such as
Bordeaux Bordeaux ( , ; Gascon oc, Bordèu ; eu, Bordele; it, Bordò; es, Burdeos) is a port city on the river Garonne in the Gironde department, Southwestern France. It is the capital of the Nouvelle-Aquitaine region, as well as the prefecture ...
,
Port A port is a maritime facility comprising one or more wharves or loading areas, where ships load and discharge cargo and passengers. Although usually situated on a sea coast or estuary, ports can also be found far inland, such as Ham ...
and
Champagne Champagne (, ) is a sparkling wine originated and produced in the Champagne wine region of France under the rules of the appellation, that demand specific vineyard practices, sourcing of grapes exclusively from designated places within it, sp ...
), cheeses (such as
Roquefort Roquefort is a sheep milk cheese from Southern France, and is one of the world's best known blue cheeses. Though similar cheeses are produced elsewhere, EU law dictates that only those cheeses aged in the natural Combalou caves of Roquefort-sur ...
,
Parmesan Parmesan ( it, Parmigiano Reggiano; ) is an Italian hard, granular cheese produced from cows’ milk and aged at least 12 months. It is named after two of the areas which produce it, the provinces of Parma and Reggio Emilia (''Parmigiano'' is ...
, Gouda, and
Feta Feta ( el, φέτα, ) is a Greek brined white cheese made from sheep's milk or from a mixture of sheep and goat's milk. It is soft, with small or no holes, a compact touch, few cuts, and no skin. Crumbly with a slightly grainy texture, it is ...
),
Pisco Pisco is a colorless or yellowish-to-amber colored brandy produced in winemaking regions of Peru and Chile. Made by distilling fermented grape juice into a high-proof spirit, it was developed by 16th-century Spanish settlers as an alternative ...
liquor, and
Scotch whisky Scotch whisky (; sco, Scots whisky/whiskie, whusk(e)y; often simply called whisky or Scotch) is malt whisky or grain whisky (or a blend of the two), made in Scotland. All Scotch whisky was originally made from malted barley. Commercial distill ...
are examples of geographical indications. Compare Russian use of "Шампанское" (= Shampanskoye) for
champagne Champagne (, ) is a sparkling wine originated and produced in the Champagne wine region of France under the rules of the appellation, that demand specific vineyard practices, sourcing of grapes exclusively from designated places within it, sp ...
-type wine made in Russia. In the 1990s, the Parma consortium successfully sued the
Asda Asda Stores Ltd. () (often styled as ASDA) is a British supermarket chain. It is headquartered in Leeds, England. The company was founded in 1949 when the Asquith family merged their retail business with the Associated Dairies company of Yorks ...
supermarket A supermarket is a self-service Retail#Types of outlets, shop offering a wide variety of food, Drink, beverages and Household goods, household products, organized into sections. This kind of store is larger and has a wider selection than earli ...
chain to prevent it using the description "Parma ham" on
prosciutto ''Prosciutto crudo'', in English often shortened to prosciutto ( , ), is Italian uncooked, unsmoked, and dry-cured ham. ''Prosciutto crudo'' is usually served thinly sliced. Several regions in Italy have their own variations of ''prosciutto cru ...
produced in Parma but sliced outside the Parma region. The European Court ruled that pre-packaged ham must be produced, sliced, and packaged in Parma in order to be labeled for sale as "Parma ham".


Scale of distinctiveness

A trademark is said to fall somewhere along a scale from being " distinctive" to "generic" (used primarily as a common name for the product or service rather than an indication of source). Among distinctive trademarks the scale goes from strong to weak: ; "Fanciful" or "coined" : original words with no meaning as to the nature of the product ; "Arbitrary" : existing words with little if any reference to the nature of the product or service ; "Suggestive" : having primarily trademark significance but with suggestion as to the nature of the product ; "Descriptive" : not just suggesting, but actually describing the product or service yet still understood as indicating source ; "Merely descriptive" : having almost entirely reference to the product or service but capable of becoming "distinctive".


See also

*
Brand management In marketing, brand management begins with an analysis on how a brand is currently perceived in the market, proceeds to planning how the brand should be perceived if it is to achieve its objectives and continues with ensuring that the brand is p ...
* Eponym *
Generic brand Generic brands of consumer products (often supermarket goods) are distinguished by the absence of a brand name, instead identified solely by product characteristics and identified by plain, usually black-and-white packaging. Generally they imitat ...
*
List of generic and genericized trademarks The following three lists of generic and genericized trademarks are: * marks which were originally legally protected trademarks, but have been genericized and have lost their legal status due to becoming generic terms, * marks which have been ab ...
*
Metonymy Metonymy () is a figure of speech in which a concept is referred to by the name of something closely associated with that thing or concept. Etymology The words ''metonymy'' and ''metonym'' come from grc, μετωνυμία, 'a change of name' ...
*
Proper adjective English orthography sometimes uses the term proper adjective to mean adjectives that take initial capital letters, and common adjective to mean those that do not. For example, a person from India is Indian—''Indian'' is a proper adjective. Etymo ...
*
Synecdoche Synecdoche ( ) is a type of metonymy: it is a figure of speech in which a term for a part of something is used to refer to the whole (''pars pro toto''), or vice versa (''totum pro parte''). The term comes from Greek . Examples in common Engl ...
*
Trademark dilution Trademark dilution is a trademark law concept giving the owner of a famous trademark standing to forbid others from using that mark in a way that would lessen its uniqueness. In most cases, trademark dilution involves an unauthorized use of anoth ...


References


Further reading

*


External links


American Proprietary Eponyms, a project by R. Krause, December 1997
{{DEFAULTSORT:Genericized Trademark Brand management Trademark law Product management Eponyms