A generic trademark refers to a common term used to name a product or service, for instance, a fashion brand of women accessories called ‘accessories.’ As a generic trademark describes a product, no one can go ahead with its Trademark Registration process. Such marks can’t obtain Trademark Protection.
Why can’t a Generic Term obtain Trademark Protection?
Generic terms such as ‘computer’ or ‘shoes’ can’t obtain trademark protection or be registered as a trademark because the other people also have the right to use the generic terms for describing the products they are selling. Furthermore, giving trademark protection to generic terms would restrict competition in the world among the brand owners and individuals, and would also make the English language lose its essence. Adding a “.com” or “.org” suffix to a generic term isn’t a possible way of transforming generic terms to a trademark. For example, “Hotels.com” had filed a Trademark Application to register its brand name as a trademark, but the Federal Court in the US had dismissed its application for the same. Nevertheless, it is possible to combine a generic term or mark with other words to get the trademark registered.
Strength of a Trademark
The strength of a trademark is directly proportional to how unique it is in all aspects. The different categories of a trademark, ranging from the strongest to the weakest are as follows:
Fanciful marks – Fanciful marks refer to made-up words that are distinctive and have a meaning only when used with a specific product or service. For example – brand names like Kodak and Pepsi.
Arbitrary marks – Arbitrary marks refer to real words with meaning but usually connected or associated with a completely different category of products or services. For example, Apple is an arbitrary mark used as a brand name of a tech giant.
Suggestive marks – Suggestive marks refer to hinting made-up words that suggest the quality of a product or service offered. For example – brand names like Microsoft, Netflix, Jaguar, etc.
Descriptive marks – Descriptive marks aren’t suggestive in nature, but actually, describe a product or service. The companies can’t obtain trademark protection for a descriptive mark unless and until it has a secondary meaning. For example – Cold and Creamy for ice cream, British Airways, etc.
Generic marks – Generic marks are indeed the weakest type of marks and can’t obtain trademark protection in any given situation. If the type of product or service you are offering is determined in the mark, say, for example, if you are selling tables and chairs and the word ‘furniture’ is there in your mark, then it is generic. Besides, if the customers and clients understand that the mark identifies the type of products or services you are offering, that too, without even educating them, then the mark is generic. A few examples of generic marks include Aspirin, Cellophane, etc.
Understanding the term ‘Genericide’ – How does a Trademark Become Generic?
Irrespective of the fact of how strong a trademark is, over time, it is bound to lose its protection and become generic. It usually happens when a trademark that refers to a specific product or service is used to describe an entire group of products as well. In such scenarios, it becomes arduous to keep the trademark and maintain its protection.
Business firms, companies, and organizations must put in sincere efforts to protect their trademarks. If they fail to do so, their competitors in the market can initiate an abandonment action and demand the cancellation of the trademark on becoming generic. The process is called genericide, and it brings obvious disadvantages to a company and its name, which are as follows:
- The trademark loses its legal protection, and competitors can use it to promote and market their offerings.
- The brand name loses its market value and uniqueness, as a result of which, promoting and advertising the product become a tough job.
- The business faces a decline in its sales.
Tips on Avoiding Genericide
A trademark that becomes generic loses its brand value, protection, and profit to a great extent, and the situation becomes worse with every passing year. However, there are a few things that a brand or business can consider and implement to avoid genericide.
- Adding the word ‘brand’ after the trademark on the packaging of the product can prove to be beneficial. Brands that have effectively used this strategy include Lysol brand and Poland Spring brand.
- Pairing the trademark with a descriptive phrase can help in protecting the brand and its business. For instance – “Via from Starbucks – ready brew” is one of many brands that have used the same technique.
- Genericide mostly happens when competitors began using the trademark of others to advertise their products or services. Therefore, it is essential to prevent the unauthorized use of a Registered Trademark and initiate legal proceedings against the infringers.