Is That Term Trademarked by KM Rockwood

Generalizations can happen when a product is new and unique to the market or has such an overwhelming share of the market that people begin to use its brand name to refer to either the process (Googling someone’s name) or all products in that category (aspirin).

Sometimes the transfer from brand name to generalized was the result of a vigorous publicity campaign run by the originator and who then was horrified when the public adopted it generically.

Otis Elevator lost its battle for exclusive use of the term escalator by using it aside the generic elevator in its ads. The company went to court in an attempt to prevent Haughton Elevator Company from using the name escalator for its product, but lost the exclusive right.

The terms below have become generalized and we can use them with impunity. Some have been challenged in court and officially tossed out for common use. Some were never registered. And some have, for whatever reason, not had their registration renewed or it has been allowed to lapse.

1. The aforementioned aspirin. Acetylsalicylic acid, aspirin was created in 1897 and originally trademarked by Bayer AG. In 1917, many German companies like Bayer lost their U.S. assets, including trademarks, which were confiscated as a result of WWI.

2. Heroin. Also a Bayer product whose trademark was confiscated in 1917. The name comes from the German heroisch, which mean heroic.

3. Thermos. Originally called a “vacuum flask,” this hit the commercial market in 1904 in Germany. A contest was held to name it, and Thermos, from the Greek Therme for heat won. The trademark was sold in 1907, sparing it the fate of aspirin and heroin, but was declared a generalized trademark in the U.S. in 1963.

4. Linoleum. This is sometimes considered to be the first modern instance of trademark generalization. The English inventor who coined the term from the Latin for flax and oil, the two main components of this flooring product, never registered the trademark in the first place, and by the time he objected to another manufacturer using it, it was in such general use that the courts declared it too late to be registered.

5. Zipper. This was registered as a trademark in 1925 by B.F. Goodrich for overshoes with an interlocking fastener. In 1930, the company sued to protect the trademark, but the term had already become generalized and they only got to keep Zipper Boots.

6. Yo-Yo. Donald F. Duncan thought he’d registered this trademark in 1932, but in 1965, a competitor won a case against him when a federal appeals court decided that the trademark was improperly registered and thus invalid.

7. App Store. In 2011, Apple sued Amazon over the use of the term Appstore for Amazon, claiming it would confuse customers. However, in 2013, Apple dropped both the trademark and the lawsuit.

A number of other trademarks are well on the way to generalization, but are still registered, which means someone owns the rights to them. These are terms that we may not be aware are still protected:

1. Teflon
Generic name: Polytetrafluoroethylene

2. Taser
Generic name: Electroshock weapon, stun gun

3. Styrofoam
Generic name: Extruded polystyrene foam

4. Realtor
Generic name: Real estate agent

5. Dumpster
Generic name: Front loader waste container

6. Crock-Pot
Generic name: Slow cooker

7. Bubble Wrap
Generic name: Inflated cushioning

8. Adrenalin
Generic name: Epinephrine

9. Memory Stick
Generic name: Flash memory storage devices

10. Fiberglass
Generic name: Glass wool

In one of my (well-paid but least favorite) jobs I was on a crew operating a glass melter in a manufacturing facility making “fiberglass” insulation. None of us were aware that the name had been trademarked by Owens-Corning. We certainly always referred to it as “fiberglass,” not “glass wool.”

If those of us so emmeshed in the industry were not aware of trademark violations, how much more easily can we writers inadvertently stray into potential problems.

When a trademark is in such general use, whoever holds the trademark often does not try to limit its informal use, perhaps for fear of losing the trademark altogether. Other commercial entities will be hesitant to use the trademarked term to name their products and in advertising, and the trademark holder may not wish to take a chance on jeopardizing heir position.

Sources:

Genericide: Cancellation of a Registered Trademark by Jacqueline Stern in the 1982 Fordham Law Review

Wikipedia contributors, "Generic trademark," Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/w/index.php?title=Generic_trademark&oldid=1211289480 (accessed March 8, 2024)

http: (consumerreports.org) 15 Product Trademarks That Have Become Victims Of Genericization (consumerreports.org) (Accessed March 8, 2024)