We’d like to think that the world plays fair, and that hard work does not go unrewarded. However, the unfair reality of the intellectual property world reflects the opposite: sometimes, a brand who’s successfully established and used a trade mark for years can find their IP threatened by a competitor. There’s a certain level of irony in the fact that a trade mark could stand to lose its protection through its own success, known in legal terms as a phenomenon called ‘Genericide’. Genericide is a form of abandonment: ‘when a mark becomes the generic name for the goods or services on or in connection with which it is used.’
If you’ve read our post on ‘What is a Trade Mark?’, you’ll know that a key requirement for the successful registration of a Trade Mark is that the mark is distinctive for the goods and services that it will be protecting. One of the areas within this ruling that can cause confusion is to do with the term ‘badge of origin’, when a trade mark can serve as an identifier of an exclusive source of a particular type of product or service. This ‘badge of origin’ can become an issue if the trade mark becomes such a common part of public vernacular over time that in fact, instead of being a distinct identifier of a particular product against its competitors, the public just use the term as an adjective – think ‘Blu-tack’ being used to refer to all forms of similar adhesive, rather than solely the product sold by Blu-tack themselves. If this happens on a great enough scale, judges can rule that terms have become too ingrained in common speech to remain trade marked, causing Genericide.
Velcro is one such company that has faced Genericide, using humour as a weapon in a video titled ‘Don’t Say Velcro’ (released in 2017) to gently enforce to the public that in fact, Velcro is their brand, not a generic term for that ‘sticky hairy stuff’ everybody knows as Velcro. Even within their humorous presentation, it was clear that Velcro’s lawyers are running into very real issues due to the risk of the Velcro trademark facing Genericide. Their website’s about page now paints their message loud and clear: ‘Never a Noun. Never a Verb. Always on Brand.’ Although most assume that it’s too late to take an educational approach to removing the term from the general public’s vernacular, unless it’s used correctly to refer to the brand, Velcro’s case proves the importance of educating the public – and other competitors – around the importance of trademark laws and the role they play in facilitating fair and competitive business practices.
If you believe your brand may face Genericide, here are some proactive strategies you can employ…
- Protect your trade mark against other competitors that are using your trade mark to advertise similar products
- Maintain your IP – watch out for misuse or for the filing of trade marks too similar to your own
- Always use the trademark in its proper form and with the appropriate trade mark symbol
- Don’t turn your trademark into a verb, noun, or possessive or plural form – keep it separate for its use to describe the brand, not the product
- Use the trademark across a line of products, rather than a single product, so it remains brand-oriented
Understanding the nuances of IP ownership and management can be confusing, but the risk for not doing so is too great to ignore. Talk to ONE IP INTERNATIONAL today so we can do so for you!
