When Does a Trademark Become Generic?

Sometimes a trademark is associated with a particular category of goods that they become generic as seen in the case of cellotape and escalators. This process is commonly known as genericide and may result in loss of trademark.

The vital function of a trademark is to distinguish goods and services of one company or individual from that of another, and if the mark does not perform this essential function, it is likely that the trademark will cease to exist and just become a generic term.

Certain trademarks such as Escalator and Cello tape have become a generic trademark and have lost their distinctiveness in the market. People no longer identify the name of the brand with a particular manufacturer, and therefore these names become generic.

What is a Generic Trademark?

Generic terms or words are commonly used in symbols, words or logos to describe the class of products or services. Generic words don't perform the function of distinguishing similar products and services in the same class. For instance, a Cake Shop cannot receive protection for mark ‘Cake shop’ as the mark clearly describes the nature of the store instead of distinguishing it from another.

 

More on: Different Types of Trademark

Legal Stance on Generic Trademarks

Section 9 of the Trademarks Act, 1999 clearly states that, for a mark to be registered, it needs to have the ability to distinguish goods and services of one business from those of other companies.

Section10 of the TM Act prohibits registration of a trademark that does not have any inherent power of distinguishing products of one proprietor from those of another.

A generic trademark is a registered trademark or brand name that has become synonymous with for a particular set of services or goods, losing its exclusivity due to overuse and popularity. This usually happens without the proprietor’s permission. 

Generic Trademark Examples

  • Xerox

Xerox is a registered trademark of the American company Xerox Corporation. Due to the brand's popularity across the globe, it has become a generic word that means photocopies. 

  • Cello tape

Cello tape was genericized to mean adhesive tape, although Henkel Consumer Adhesives has a registered word mark for its exclusive use.

  • Tupperware

Tupperware is a registered trademark of Earl Tupper. The product has been genericized for home products throughout the world.

  • Band-Aid

Johnson and Johnson owns the rights for the word mark Band-Aid, which was genericized to mean Adhesive bandages. 

 

 

Why does a Trademark become a Generic Word?

When people start associating a mark with a group of services or goods, the name stops functioning as a trademark and falls in the public domain, thereby losing its essential characteristic of being distinctive. 

How to Keep your Trademark Robust?

The key here is that the public should recognise the trademark as an identifier of only your products and services. If you take certain steps to avoid genericide, it would ensure that your brand's trademarks don't get abandoned.

  • Be vigilant about the proper use of the trademark. 
  • Use the symbols and ® for unregistered and registered trademarks respectively, to show that certain rights have been conferred on the mark. 

Deduction

Once a trademark has lost its ability to perform the function of distinguishing a brand's good and services, it can no longer act as a trademark. The mark eventually becomes generic, despite the fact that a brand might still have rights of exclusive use over the mark.

 

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