- What do the words, aspirin, escalator,
and trampoline have in common?
Well, you might be surprised to know
they were all once trademarks,
which fell victim to this horrible, awful,
terrible thing that we call genericide.
Don't go anywhere, 'cause I'm going to tell you
about the worst kinds of trademarks,
and how to prevent a killing or unaliving of your trademark.
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Hi everyone, I'm attorney Aiden Durham
with 180 Law Co in Colorado,
and welcome back to All Up In Your Business.
Before we get into it, don't forget to like,
subscribe, and share,
and check the description for links
to additional information and resources,
including a link to download my free introduction
to trademarks guide.
All right, so quick little story time.
I was on the phone with a client recently,
talking about his trademark.
He's starting a new business with his wife.
We're doing a clearance search,
making sure that he's okay to start this business,
and we're talking about the trademark,
and he's telling me how he and his wife
were discussing one day,
"Wouldn't it be so cool if our business
"became so well-known,
"our brand was so famous that this term
"that we're using for our business became so well-known,
"what if it was in the dictionary one day,
"that's how popular it was?"
And instantly, I said, "No!"
I just screamed out loud and interrupted him.
I said, "No, no, that's the worst thing
"that you could possibly have happen to your trademark.
"That's the opposite of what we want."
I think it scared them a little bit,
because I kind of screamed it out loud,
but frankly, that's bad.
On the one hand, of course, we want a trademark,
we want our brand to be well-known, popular,
we want people to think of it
when they think of the type of products
or services that we're offering.
We want everybody to be talking about it,
but on the other hand, if it's too popular,
becomes too well-known,
if your trademark, this term, becomes too commonplace,
it essentially kills itself.
It loses its distinctive identity
as a result of being referred to for any other kind
of product or service,
and this is what we in the trademark biz
refer to as genericide,
or when a trademark becomes a generic term.
So a generic term, when we're talking trademarks,
means just the regular, old, commonplace,
everyday term for a product or a service.
While you can certainly use a generic term
in your trademark,
a generic term isn't capable of registration
on its own as a trademark,
because it's not a trademark, it's a generic term.
It would be like having a business called Shoes
if you're selling shoes,
or Chips, if we're selling chips.
It's the generic term for the product
or the thing that we're selling,
and generic terms can't be registered as trademarks,
and this does actually happen in real life.
For example, with elevator, aspirin, trampoline.
At one point, these were the brand names for those products,
but these words became so commonplace,
people started referring to basically any kind
of painkiller as aspirin,
any kind of a jumpy thing as a trampoline,
any kind of thing that lifts you up as an elevator,
and the trademarks, not all of them,
necessarily are registered trademarks,
but eventually become canceled,
or the owners, the businesses lose the trademark rights
because they become generic terms,
because essentially, they're too popular.
And then just over this past weekend,
I was on a road trip with my dad,
and somehow, the conversation of generic trademarks came up,
and he was surprised when I told him
that elevator used to be a trademark.
And then we got into this whole conversation about thermos,
because again, thermos used to be a trademark
for a thermos brand, which sold vacuum sealed bottles,
something like that, but over time,
we just started referring to every bottle as a thermos,
the Thermos people didn't like that,
and so now their trademark doesn't exist anymore.
There are a lot of products, brand names
that are on the brink of genericide,
Band-Aid, for example.
Band-Aid is a brand name for bandages,
but I mean, who says, "Hey, you got a bandage?"
No, I know I at least, I don't care what I'm referring to.
I say, "Hey, do you have a Band-Aid?"
I'm not specifically asking for a Band-Aid brand,
but I'm looking for a bandage.
Same thing with ChapStick.
ChapStick is a brand of lip balm,
but a lot of us just refer to any kind
of lip balm as ChapStick.
"Hey, can I borrow your ChapStick?"
Same thing with Frisbee.
Frisbee is a type of flying disc toy,
but we refer to any flying disc as a Frisbee.
Hula hoop, Jacuzzi, oh, Kleenex.
That's a big one, Kleenex.
Not every tissue is a Kleenex.
Only Kleenex brand tissue is Kleenex.
Q-tip, Sharpie, all of these products,
all of these trademarks are getting dangerously close
to becoming generic terms.
Even Google has had to defend itself
from becoming a generic term.
Not too long ago, someone tried to cancel
the Google trademark registrations on the grounds
that it had become generic for a search engine.
Again, I don't know about you guys,
but when I say, "Hey, Google it,"
I'm not specifically telling someone to go to Google,
I'm saying, "Hey, search the internet for it,"
or "I'm gonna Google it."
Google is, you know, they won.
Google won that fight, and it's not generic yet,
but it's still getting dangerously close.
So of course, again, we want, you know,
the goal with most trademarks, most brands
is brand recognition, to become well known,
to be a common word that people use
when they think of a product or a service.
We want our brand, our trademark to be associated
with that and have everybody talking about it,
but if it gets too popular or too commonplace,
then it does the exact opposite,
and diminishes the distinctiveness
and that brand recognition by becoming
a generic commonplace term for any product
or service of that nature.
But, you know, there are a few things
that we can do to help prevent genericide
from falling upon our beloved trademark,
things like educating consumers
that the trademark is the source of the product
and not the product itself.
ChapStick is the source of this lip balm,
the lip balm isn't a ChapStick.
Band-Aid is the source of this bandage,
not the product itself.
Even in marketing, advertising, logo designs,
use the trademark as an adjective
with the generic term for that product.
So often in commercials or print advertisements,
we see Jell-O gelatin.
They don't just refer to it as Jell-O all the time,
because then we'll start calling any kind
of gelatin product Jell-O, and they don't want that.
It's Jell-O brand gelatin, same thing with Kleenex.
I dare you take a look at your Kleenex box of tissues,
if you have one laying around.
Most likely, their logo on there says Kleenex brand tissue.
So use the trademark as an adjective
in conjunction with the generic term for the product.
And again, that's not to say that you can't have
the generic term in your trademark,
just that term can't be the trademark itself.
So you can't register a trademark for chips
if you're selling chips,
but you can register, you know, Kleenex brand chips.
If Kleenex were selling chips, that would be okay.
Try to avoid using the trademark as a verb,
just like I do, Googling something.
Googling, in that sense, is a verb,
but really, Google is the brand.
It's a noun as they probably want us to use it.
You don't want to use your brand, your trademark
as the generic term for that product.
It's important to monitor other uses
and enforce your trademark rights
to avoid becoming generic and having
this genericide happen to your trademark.
If you let others use it improperly,
that could lend to it becoming a generic term,
or making it more commonplace for describing
a product itself, instead of, again,
as the source of that product.
So on the bright side, it does take a lot
to become a generic trademark.
It's not like this is gonna happen overnight.
If you've just started your business,
you don't need to be too concerned
about it becoming generic.
This happens for really well known,
very popular common brands,
but even with trademarks,
we can have too much of a good thing,
and too much recognition, or too much popularity and fame
can work against us and do the exact opposite
of what we want with regard to our trademark.
Of course, this is a major benefit
of working with a trademark attorney
if you're looking to register a trademark for your business.
A trademark attorney like myself,
we can let you know if your trademark is a generic term,
or if you're gonna run into issues
with generic terms in your mark,
and we can help advise you on how to prevent
this genericide from happening as your business grows.
If you are interested in getting a registered trademark,
you can check the description for links
to my all-inclusive trademark registration package
called Brand Bombshell,
where I hold your hand through the entire process
of doing the clearance search, preparing the application,
handling anything with the USPTO,
up until we get that beautiful, golden
registration certificate.
You can also learn more about Brandish,
which is my online DIY trademark course
that walks you through, step-by-step
how to prepare for and submit a trademark application
without a lawyer.
That's all for this episode, folks.
Drop a comment below, let me know what you think,
and again, don't forget to check the description
for links to additional information and resources.
You can even download my free Introduction to Trademarks
guide if you want to learn more about trademark.
thank you all so much for watching.
I'm Aiden Durham, and I'll see you next time.
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