Occasionally a company's brand name becomes so deeply ingrained in the minds of everyday consumers that it enters the popular lexicon of its time and becomes a catch-all term for the generic product or activity in question. At first glance, this might appear to be the pinnacle of successful marketing. Indeed, companies around the world spend billions of dollars every year conjuring up catchy jingles, memorable catch phrases and cute characters in an effort to ensure their brand is the first to spring into consumers' minds when those consumers realise they require a particular product or service.
For those companies whose brand names travel too far into the public domain, however, there can be serious repercussions:namely, losing their right to trademark that particular brand. This can occur because in many jurisdictions,such as the United States, companies have a responsibility to ensure their brand names do not pass into broad popular usage, a process known in the legal industry as 'genericisation` or more candidly, genericide.According to a Harvard law school overview on the subject,'a word will be considered generic when, in the minds of a substantial majority of the public, the word denotes a broad genus or type of product and not a specific source or manufacturer'. In arriving at a conclusion, courts typically examine dictionary definitions, use of the term in the media, and consider whether or not the company has attempted to restrain usage of its trademark. If the court deems the word to be generic, trademark privileges are stripped; no company has an automatic right to continue renewing its trademarks without an end date.
Over the years, numerous companies have fallen victim to this common and unwanted marketing phenomenon, losing their prized brand names and subsequent loss of trademark status. Otis Elevator Company lost their trademark rights to `escalator' in a 1950 court case after being found guilty of using the term generically in their own patents and advertising. In 1965, a court ruled that 'yo-yo' was ingrained in common speech, and the Duncan Yo-yo Company subsequently had their trademark revoked.Kerosene,zipper, thermos, and the Philips-head screwdriver round out the list of household goods now in the public domain.
Genericisation is not an unstoppable process, however, and there are strategies that companies can adopt in order to maintain control of their brand names and avoid them becoming generic. One such strategy is for companies to invent a generic term of their own, which is particularly useful for those businesses that have invented unique products for which no existing terminology is available. In the early 1990s, for example, Nintendo so thoroughly dominated the market for video games that many consumers began referring to all such devices as 'Nintendos'. In response, the company promoted the generic term `games console', which eventually gained traction and rescued the brand from following the same route as the escalator and the zipper. The Griswold-Nissen company were not so fortunate, however, when they attempted to promote the trampoline as a 'rebound tumbler' -the generic term never caught on and they eventually lost their trademark.
Other companies have attempted to advise broadcasting services, language authorities and the broader public on the appropriate use of their brand name. The Internet search engine Google, fearing that widespread use of the verb `to google` could result in future legal trouble, has contacted journalists, dictionaries and even the Swedish Language Council in an effort to avert genericide. In 2006, the company sent out a plea for everyone to please only use `Google` when you`re actually referring to Google Inc. and our services`. In a similar vein, Xerox corporation was able to successfully encourage users to eschew the verb `to xerox `in favour of a generic expression, `to photocopy`, and it was helped to its goal by a series of snappy ads including: `You can`t Xerox. But we don`t mind at all if you copy a on a Xerox copier.`
Although it is very unusual, it is possible for a trademark that has become generic to be Recaptured from the public domain. Two examples of this are the sewing machine manufactured, Singer and the type company, Goodyear. In both cases, however, many years elapsed from the time that the trademark became generic until it was recaptured. In each case, the company was required to prove that their brand name was identified in the minds of the public as belonging to their particular brand, rather than as generic name for all such products.
In the end, however, language is owned by the community that uses it, and with the growth of the Internet in particular, this community is becoming ever more global. Consequently, it is becoming increasingly difficult for brand managers to monitor and curb inappropriate uses of brand names. `Things have certainly changed,` says trademark specialist Nigel Jennings, who once wrote hundreds of letters admonishing writers for referring to `rollerblades` or `rollerblading` instead of the generic term, inline skating. `If something becomes generic becomes everyone ignored your request, well, that`s just fact. You`re like King Canute, you`ve failed.`