Genericide, Genericized, Generic, and Descriptive Trademarks
Unlike suggestive, arbitrary, and fanciful trademarks, generic trademarks cannot be protected under trademark law. Generic trademarks are those that have suffered genericide, genericization, or been genericized. Descriptive trademarks and merely descriptive trademarks are not considered strong trademarks, but can still be protected.
A trademark can be one of the most valuable assets a company owns, therefore it is best to create the strongest possible trademark. A trademark that is unique and distinctive, for example, is considerably stronger than a trademark that does not distinguish the product or services from its competitors or the product or service itself. For example, the words Furniture Store would be considered weak and could not be protected for use in relation to the sale of furniture. While it is possible to register a weak trademark, it is not afforded much legal protection from perceived infringers.
If you are starting a new business or considering launching a new product or service, you undoubtedly will be considering the different types of trademarks and the best option for a trademark. During this process business owners often tend to choose descriptive trademarks that may be helpful from a marketing perspective but that may be difficult to acquire or protect from a legal perspective. Rather than a descriptive or generic trademark, a suggestive trademark strikes the best balance between marketing and legal considerations.
Generic Trademark Examples
Generic trademarks are not capable of legal protection due to either being generic from the outset or to becoming generic over time.
What is a Generic trademark?
A generic trademark is a term that is used to describe the type or category of goods or services at issue. Generic trademarks are not eligible for trademark protection because it would prevent other companies from fairly describing their goods or services. For example, if a company was permitted to register Furniture Store for the sale of furniture, all other furniture stores would have difficultly describing their business without committing trademark infringement.
What is Genericide?
Genericide is the process that occurs when a brand name loses its trademark protection due to becoming generic. During this process, consumers begin to use a trademark brand name to mean a type of thing rather than a brand of thing. For example, Aspirin, ChapStick, Kleenex, Thermos, Trampoline, and Videotape have all lost trademark protection due to becoming generic.
What is Genericization?
Genericization is the same process as genericide. It occurs when a brand name loses its trademark protection due to becoming generic.
What is a Genericized trademark?
A Genericized trademark is a trademark that has become generic due to Genericide. Aspirin is a famous example of a genericized trademark.
Descriptive Trademark Examples
Descriptive trademarks generally fall into two categories, descriptive and merely descriptive.
Descriptive Trademarks – At times descriptive words can function to designate the source of goods and thus can be registered as a trademark. This type of trademarks can be registered to the supplemental register or to the principal register with a section 2(f) designation. For example, a furniture store named California Furniture Center would have limited trademark rights because the trademark describes the fact that the company is a center for selling furniture in California.
Merely Descriptive Trademarks – A merely descriptive trademark immediately conveys the quality, feature, function, or characteristic of an applicant’s goods or services. Words or phrases that describe the function, use or purpose of the product or service are difficult to protect as trademarks. However, it still may be possible to register these types of trademarks to the supplemental register or to the principal register with a section 2(f) designation. A descriptive trademark can become distinctive if a company has established exclusive use of the term over a period of time and consumers now associate the descriptive term with the particular company. For example, Raisin Bran took on secondary meaning over time as consumers differentiated the various cereals using raisins and bran from the specific cereal sold by Kellogg’s.
If you are selecting a trademark and are concerned that it may lean toward the descriptive side, or if you have any questions, please feel free to contact us.