Why Small Business Owners Should Care about Trademark Genericide

The law protects trademarks because they function as “source identifiers.” When a person sees a company logo on a product, they know which company is responsible for it. This allows consumers to easily find companies whose products they like, while avoiding those who sell inferior goods. Understanding this purpose of trademark law allows for an easy understanding of many of its doctrines.

One important doctrine of trademark law is genericness. The statute governing trademark law makes it clear that no company can trademark the generic name for a good. For instance, no one can register a trademark for “bread.” There are two closely related reasons for this. First, the word bread is not a source identifier. It does not tell the consumer who made the product, just what it is. Second, it would place competitors at a disadvantage. If one baker had a monopoly on the word bread, no other baker could tell their customers what they were selling. They would have to start marketing it as “wheat loaf,” or some other less recognizable name. This doctrine has an important consequence: genericide.

What Genericide Is

Genericide is what happens when a mark that used to be a source identifier becomes the generic name for the product. There are plenty of examples of this throughout history: trampoline, aspirin, and yo-yo all used to be trademarks. They were specific products made by specific companies, rather than general types of products. Once a product’s trademark becomes generic, the markholder loses all rights to it. They cannot enforce it against anyone. Bayer can no longer sue other drug companies for selling aspirin. Consequently, many major companies like Google, Xerox, and Kimberly-Clark (the owner of the Kleenex brand) spend considerable sums of money making sure that consumers stay aware of the fact that their marks are not the generic words for search engines, photocopiers, or facial tissue, lest the mark succumb to genericide.

Why This Matters to Smaller Companies

Those examples are all massive companies with huge followings, which may make it seem like this is an issue that only large companies care about. After all, it would seem to be difficult for a mark to become generic without dominating the national market to the point where it starts affecting language. However, that is not necessarily true. Small business owners should pay attention to this problem because it can affect them too, especially when they are inventing a new product.

When a small company starts selling a completely new product, it has no name. Oftentimes, business owners are content to simply stick their trademark on the product and sell it as that, without actually coming up with a general name for the type of product. This is a mistake that can lead to genericide.

Take the story of the yo-yo. The company Duncan originally started selling Duncan Yo-Yo’s as a trademark. However, when competitors wanted to enter the market, they did not know what to call their products. The competitors also started selling them as yo-yos, and Duncan eventually lost the rights to its mark because otherwise the competitors would have no way to advertise their nameless product.

Trademarks are a way for businesses of all sizes to connect with consumers and protect their reputations. If you are having a trademark dispute, and want to learn about your options, contact a Florida trademark attorney at Pike & Lustig, LLP today.