Worldwide 16 Jun 2017

Trademark or product? Aspirin and other degenerated trademarks

Some trademarks become so dominant and strong that they eventually become synonymous with the product. This has happened with names such as thermos and linoleum. These were originally trademarks, but the products became so dominant and the brands were so strong that common man used the brands as a product identifier.

Unfortunately, it creates major problems for the trademark owner. The name loses its distinctiveness and becomes degenerated. The mark loses its function as a tool for distinguishing your product from your competitors’.

Degeneration legal and communicative consequences

In addition to having legal consequences, degeneration will harm your brand communicatively. If the brand becomes generic, consumers will not associate it with your product, its characteristics, quality, innovation, reliability, etc. – it loses its strength.

Although there are many examples of brands currently used generically, there are few registrations that have been subjected to cancellation. Comprehensive evidence is required in order to show that a trademark has been degenerated.

“To google” risks making trademark Google degenerated

Google, which dominates the market with its search engine on the internet, actively works to ensure that their brand is not degenerated. Recently, Google won a lawsuit in the United States where the counterparty used Google’s name in their domain names. The counterparty was Chris Gillespie who in 2012 had acquired 763 domain names including the word “google”. He claimed that the name was an established concept that he should be allowed the domain names. His argumentation was based on the fact that the common man have made the brand a verb “to google” and that it has become synonymous with searching on the internet, not a specific search engine.

Google asked the court to retrieve the domain names from Gillespie and Google won the reason that even though the public uses trademarks as the name of unique products, it does not immediately render the trademark generic.

This litigation process is just one in the line of activities Google does to avoid degeneration. Already in the company’s annual report from 2005, you can read that they are aware of the risks of degeneration and since then, Google has been actively working on the problem.

How to avoid your trademark being degenerated

When creating a brand, it is important to understand what causes degeneration and what the consequences are. When creating a name, it is important to keep in mind that it should have high distinctiveness. You can show in your communication by using the ® symbol that the name is registered or write the name in capital letters, alternatively use the mark in combination with the term ™.

It is also important to show in your communication that you communicate a specific brand and not a general product category. Otis failed, for example, to prove that “Escalators” was a trademark of moving stairs, as they, among other things, wrote in their advertisements “escalators” along with related generic words such as “elevators”. Instead of clearly marking it was a brand.

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