Is there a danger that my trademark can become generic?
UPDATED: December 16, 2019
It’s all about you. We want to help you make the right legal decisions.
We strive to help you make confident law decisions. Finding trusted and reliable legal advice should be easy. This doesn't influence our content. Our opinions are our own.
Yes, there is a danger that a trademark can become generic. A trademark becomes generic when it loses its uniqueness. Generally, this means it is used so much in the everyday that it loses the special qualities that made if worthy of being a trademark in the first place. There is also legal significance and consequences when a trademark becomes generic.
How Trademarks Become Generic
When considering a trademark, the United States Patent and Trademark Office views its uniqueness along a scale. The scale ranges from strong to weak. Below are some of the terms used in it:
- "Fanciful" - original and having little if any reference to the nature of the product or service
- "Suggestive"- having primarily trademark significance but with suggestion as to nature of product
- "Descriptive"- not just suggesting, but actually describing the product or service
- "Merely descriptive"- having almost entirely reference to the product or service
Once a trademark gets into the area of being “merely descriptive,” it can be used to describe products similar to or even competing with the one trademarked. The owner runs the risk of the public using the trademark name to describe an entire class of products rather than his specific product.
When Trademarks Become Generic: Examples and Consequences
Some examples of items that were once trademarked, but have become generic are: cellophane, dry ice and email. At one point each of these referred to an individual product produced by one company rather than any similar product. Once this happens, it becomes difficult to maintain the trademark.
Advertising the product becomes difficult and the original company can lose sales and market share. It can be cancelled when a competitor starts an abandonment action. This is a lawsuit requiring that a trademark be cancelled because the original owner has not maintained exclusive use of the mark and has allowed it to become generic. The dangers of becoming "genericized" are good cause for a trademark owner to monitor competitors and take action when noticing unauthorized use. An intellectual property attorney can help you take such action.