Marketers are encouraged to maximize the awareness, trial and usage of their brands. They also know that a brand is more than just a fanciful name. Insightful research and prudent positioning will make a brand “special” in the eyes (and hearts) of their target customers, offering a meaningful promise, a credible reason to believe this promise and a competitive edge. The name is the face of this brand positioning. Ideally, it should be memorable and generate associations that can help create a special relationship with the customer. And the name should be trademarked.
A trademark is a word, name, symbol or device that identifies a particular company’s product or services. However, when a brand is so successful, it runs the risk of becoming synonymous with the category, especially if the name is a made-up word. This is called the “genericization” of the trademark, which is bad because it threatens a company’s legal right to that trademark. The standard for “genericide” (another term used by lawyers) was established at the seminal case of Bayer Co. vs. United Drug Co. in 1921, where Bayer lost its trademark for Aspirin. This set the precedent that if a brand name is understood by the public to refer broadly to a category of goods and services rather than that brand’s specific good or service, the company risks losing its trademark. Here are some examples of well-known brands that have lost their trademark protection since 1921 and now merely refer to classes of products we see every day:
- Kleenex – from Kimberly-Clark, instead of tissue
- Escalator – a trademark of the Otis Elevator Company
- Zipper – originally owned by B.F. Goodrich
- Dumpster
- Linoleum
- Trampoline
- Laundromat
Basically, when a trademark becomes so pervasive that it no longer just represents the brand, it often is used as the action or a verb. It then becomes too descriptive or generic in nature to protect. With this in mind, there are successful brands that are in jeopardy of losing their trademark and hence diligently fighting to protect it:
- Band-Aid – from J&J, which is the immediate choice to cover a cut or scrape
- Xerox – often used as a verb (go “Xerox” this…), so encouraging people to use it as a noun (use a “Xerox” copier”)
- Legos – avoiding using a plural version, so instead favoring “Lego bricks” over Legos.
- Hoover – hoovering or to hoover up a carpet, dating back to the 1940’s
- Frisbee – a flying disc still protected by Wham-O
- Velcro – still trademarked by the parent company, Velcro.
Perhaps the biggest challenge of a recognizable brand is Google. The name “Google” was officially recognized as a verb by the Oxford English Dictionary in June 2006. In the same year, the Merriam-Webster online dictionary recognized a broad definition of “googled or googling for the use of a Google search engine to obtain information on the World Wide Web”, based on three criteria: widespread usage, sustained use and meaningful use. However, Google took a more affirmative stance on protecting its trademark from “genericization” in 2013 when it took legal steps to stop Sweden’s Language Council from adding “ungoogleable” to its list of new words (i.e. meaning something that can’t be found on the web using a search engine – any search engine).
In addition to Merriam-Webser and Oxford recognizing google to describe any online search, other sources have since joined in with this recognition – Macmillan, Cambridge, Dictionary.com and Wikipedia. Notwithstanding this widespread acceptance, Google continues to encourage the use of “google” as a verb that pertains only to online searches on Google to protect its trademark status.
Another emerging challenge involves what to call marijuana these days. This is a $10 billion market today, with 11 states and the District of Columbia having legalized it. “Marijuana” was first introduced into the English language in 1874, which was derived from Spanish, as the Spaniards brought cannabis to Mexico to cultivate for industrial hemp. In the Jazz age of the 1920’s – 30’s, it was called dope, reefer and tea, and 30 years later in the 1960’s, the counter (or “Stoner”) culture called it grass, pot and weed. While there may be a generational divide on what to call it, today’s marketers prefer the centuries-old terminology of “cannabis” which had long been used to describe the plant and its medical properties.
The risks of “genericization” of a trademark may seem a farfetched outcome for a new product, but it is a dilemma for marketers of well-established brand names – a real paradox for those who strive to dominate a category.
