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How can I avoid the hazards of 'genericide'?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Some readers with receding hairlines or graying tresses will remember the age of generic products. Back in the 1980s, goods from bleach to spaghetti noodles started appearing in grocery stores. They stood out for what they lacked - specifically colorful labels, company branding and logos. Generics carried minimalist black and white labels; so instead of Budweiser, a person might buy simply Beer.

The trend seemed to have merit in concept. Name branding was thought to add cost and eliminating it would lower prices to consumers. The problem was that many came to believe, wrongly, that generic products were second best. Within a few years, generic labeling disappeared. Today, shoppers enjoy products carrying private store labels such as 365 and Archer Farms. In retrospect, these developments provide a lesson on what is known as "genericide" - the potential loss of commercial value if trademark protections lapse.

Avoiding genericide

Generally, genericide is the result of trademark abandonment. It can happen if a company stops using the trademark for three years or more while showing no intention of resuming its use. It also might happen if the mark comes to be seen by the public as synonymous with the good or service itself. Some argue this is what has happened to Google.

Those with particular expertise in marketing offer the following tips as ways to avoid genericide.

  • Link trademarks to product names: Examples of this might be Q-Tips cotton swabs or Xerox┬« copying machine. Nike isn't just on athletic shoes; it's on clothing, too.
  • Make the trademark clear to consumers: If a trademark is registered, display the letter R in a circle (see the Xerox reference above). If a mark isn't registered, use TM.
  • Make the trademark stand out: Use a distinctive font or capitalize the trademark.
  • Standardize a trademark's use as a singular adjective: It's not a Kleenex, it's KLEENEX tissues. Likewise, you don't want to say, "Use two Kleenexes." It should be "Use two KLEENEX tissues."
  • Don't use the word as a verb: How many of us say, "Just Google it"? That definitely suggests the search engine is mainstream, but has it become generic for any browser search.
  • Educate everyone on proper trademark use: The list of trainees includes your employees, distributors and consumers.

And if a trademark is misused, take action to correct the problem - including consulting an attorney about your legal options.

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