Did you know that you can lose your trademark for being too good at marketing? Don’t fall victim to Trademark “genericide” or “brand verbing”. Find out why companies like Xerox, Velcro, and even Google have battled genericide and how you can avoid it on episode #3 of NameChangers.
NameChangers Episode #3 Transcription:
So you have a great name and you don’t want anyone else to use it, so you need to legally protect it. However, trademarking a name can get a bit complicated. There are five strengths of trademark and for the next five episodes, I will go over each of these categories, give some examples, and let you know if that category can help you or hurt you Plus, I’ll be testing my ability as a storyteller, because if I can make trademark law interesting, I can probably make anything interesting.
I’m James Doherty and this is Name Changers.
Before we start I want you to picture the following products:
and a dumpster
Got ‘em? Hold on to those till later because we’ll be coming back to ‘em. The big naming trend in startups right now is a cool, simple, one word name which makes total sense, I mean, easy to brand, easy to remember, just easy all around. However, you have to be careful with just how simplistic you make it and this is where generic trademark comes in, the lowest strength of trademarks.
Christopher Roden: Well see, that’s where it gets interesting because in terms of trademark law, you can’t have a generic trademark.
That’s Christopher Roden, a trademark attorney in California. He’s going to be helping us a lot in this series.
Roden: Something that’s generic is just a term. So like, for example, the term “computer”. It would be anti-competitive for Dell or Apple or HP to have just the word “computer” when they’re selling computers. So, to sum it all up, a generic term is literally the thing that you are selling or the service that you are providing.
James: This level is in place to protect companies. Let’s say a new minimalist cereal company came around and they wanted to name themselves “cereal”: c-e-r-e-a-l. They wouldn’t be able to because every company in the cereal game should be able to use that word. It’s in place to protect from monopolies.
Roden: They’re not registerable and they don’t function as trademarks. That’s the idea is a trademark is supposed to indicate source by just using a generic term like “I’m selling guitars” you’re not telling consumers what the source of the goods are. You’re just telling consumers what the goods are.
James: Alright cool, so easy enough. So that’s it right?
Roden: And then we have to talk about the issue of genericide.
James: Ugh, I knew there was gonna be some drama.
Roden: Genericide is what happens when a coined term, a trademark, has become the name of the goods. So, the idea behind that is people have started referring to this particular good by the name of what it was trademarked under.
James: You still got that list from earlier? Let’s go over just in case:
and a dumpster.
These are actually examples of brand names that have become so synonymous with their product that they have lost or have been at risk of losing their trademark. Here is a list of their real names:
a cotton swab
a rebound Tumblr
a vacuum flask
and a movable garbage bin
Not as catchy, huh? Out of the six names I mentioned, only two have kept their trademark: Q-tip and Band-Aid. All of these companies spend millions effectively marketing their product and name and then end up losing their trademark. Imagine walking into an electronics store and seeing a wall of tablets of varying quality all having the word “iPad” on their packaging. And it’s not just older items, a company that has recently nearly fallen victim to this concept is tech powerhouse Google. “Googling” and “Googled” even have their own entries in the dictionary. This could be terrible for Google. Once the general public and publications begin using your name as a verb, you’re reaching dangerous territory.
Roden: You don’t Google something on Bing, you search something on Bing.
James: Nigel Jennings, a lawyer in the UK, has recounted his time trying to fight genericide in another popular company. He said this in an interview, “Until a few weeks ago I acted for Rollerblade, and whenever we were informed by a press cuttings agency that someone had referred to having “rollerblades” or going “rollerblading” they would receive a letter for me. I’ve sent hundreds.”
So if an article uses your name in such a way, you have to contact them and have them attached the magic symbol the magic symbol, that little circle with the R inside, the registered trademark symbol. Now in order to get that you have to be granted the trademark from the USPTO office, which could take a few months, maybe even a year. So before then you can use the little TM symbol.
Roden: Xerox for eons had this huge marketing campaign saying you are not “xeroxing” a document, you’re copying a document using a Xerox brand printer. And the way that you can do that really is to emphasize that the good is this thing, the thing that I’m selling, the services that I am selling this particular thing, we’re just providing this particular thing under this brand.
James: So companies end up spending millions on campaigns trying to backtrack how effective their other campaigns were.
Band-Aid’s famous jingle, written by Barry Manilow himself, added the word “brand” making it slightly less catchy. The term “jeep” was a popular term starting in the 40s until Chrysler purchased the trademark in the 80s their marketing became so effective any car similar was called a Jeep.
So, let’s recap. when naming you are not allowed to trademark generic terms in your space. And if your marketing game is killer, remember these terms and send me a few million dollars for helping you save your name. We’ll call it a consulting fee.
NameChangers is made in association with NameStormers, a naming agency in Austin, TX. You can learn more about them at namestormers.com. Very special thanks this week to Chris Roden. The song “Work” by Kevin MacLeod was used this episode. If you like the show so far, please leave us a review on iTunes we’ll see you next time.