Genericide and How It Affects Trademarks

Genericide and How It Affects Trademarks

Genericide is the process by which a registered trademark becomes generic. After genericide has taken place, the affected trademark is much less likely to be able to receive legal protection if the trademark owner does nothing to keep it protected. This is because a generic trademark is one which outright describes a product and thus cannot be registered as a trademark.

A trademark owner should do everything possible to defend the trademark from genericide and its effects. Trademarks which are no longer deemed to be distinct and do not identify an exclusive source after members of the public begin to regard the trademark as a generic term no longer provide a protective effect. When this happens, the trademark owner’s rights are more likely to be severely diminished.

The Process of Genericide

Genericide begins when a registered trademark which once referred to a specific product is used to describe an entire product group. As the process of genericide proceeds, the trademark loses its ability to provide legal protection through the diminishing of the product’s distinctive qualities. The final stage of genericide takes place at the societal level, when the trademark name becomes just like any ordinary word to average members of the public. Examples of some ordinary words derived from trademarks which have experienced genericide include “aspirin”, “escalator”, and “trampoline”.

Once a competitor has determined that genericide has taken place, the competitor may choose to start an abandonment action. This may in turn lead to the eventual cancellation of the trademark. After the process of genericide is completed, any person or entity may then use the formerly exclusive trademark to market any products until or unless it once again receives protection as a distinctive trademark.

Negative Effects Caused by Genericide

Genericide could cause a trademark owner’s business to experience sales difficulties. It may be very difficult to advertise a product if its associated trademark has become generic. This in turn often leads to a decline in product sales. Genericide may even cause a trademark owner’s competitors to benefit at the owner’s expense if they use that same trademark to successfully market their own products.

Genericide might also cause the trademark owner’s business to suffer much financial damage. This is because like other forms of intellectual property, trademarks are also business assets. If a business no longer experiences protection through its associated trademark, the value of its brand may soon plummet. It would not only become less financially stable; investors may also become less likely to invest in the business.

Category Killers and Genericide

A category killer is a product which dominates a particular market. Any market can be said to have a category killer when even that product’s closest competitors are not even close to its standing in the market. However, the great success of category killers has also left them and their trademarks vulnerable to the effects of genericide.

In many cases, a product becomes a category killer by being the first of its type. Most people then come to know the entire product category by the trademark name of this pioneering product. When most people begin to conflate this trademark name with the product in question, the process of genericide can then be said to be underway. In an ironic twist, the sheer dominance and success of a category killer may also cause its failure by allowing genericide to take place.

Protection Against Genericide

Trademark owners can guard themselves against genericide in several different ways. They may publish a set of rules regarding proper use of their trademarks. Trademark owners may also conduct advertising campaigns to educate the public about the proper use of their business’s trademark. Some brands even include the word “brand” on their product packaging to deter public use of their names in a generic manner.

Protection against genericide could also be provided through a descriptive term or phrase. This descriptor specifies the fact that the trademark is not to be used as the product’s generic name. One final method of protection against genericide is business expansion. By expanding the range of products sold by the business, the new products may make use of the same trademark and thus maintain the trademark’s distinctiveness.

This article is brought to you by Exy Intellectual Property Malaysia and Singapore.