Brand Names that are now Generic
“When something becomes so pervasive in everyday society as a result of its own fame, there’s an argument that it no longer represents the brand, it almost represents the action. So as a result of that, in trademark law, you cannot trademark things that are descriptive or generic in nature.”
- Onesies: Onesies is still a registered trademark, but have become widely used in referral to one-piece jumpsuits.
- Bubble Wrap: While technically still a registered trademark of Sealed Air, it’s now effectively a generic trademark.
- Crock-Pot: While people often refer to slow-cookers as crock pots, Crock-Pot is still registered, and a few years ago had to respond to an unexpected PR nightmare. Basically, a fan-favourite character from the show This is Us died after a crock pot accident set the draperies on fire. Crock-Pot had to create a twitter account to deal with freaked out fans throwing away their Crock-Pots, and even asked NBC for help to correct the misunderstanding.
- Dumpster: Trademarked by the Dempster Brothers and patented by them in 1995, the trademark has since been expired or cancelled.
- Jacuzzi: Still trademarked, but often used as a generic name for a hot tub.
Avoiding Genericism - A Xerox Story
Bayer Co. v. United Drug Co. was a seminal case in which Bayer lost its trademark for Aspirin to what experts now refer to as “genericide.” That 1921 case set the table for the modern standard that courts currently follow: If a brand name is understood by the public to refer broadly to a category of goods and services rather than a brand’s specific good or service, a company may be at risk of losing its trademark. Escalator, cellophane, and laundromat have all lost their trademark status to genericide.
Xerox’s IP counsel and marketing team works hard to ensure Xerox’s survivability as a registered trademark, avoiding what happened to Zipper and Aspirin. They do this by raising awareness that ‘Xerox’ is a registered trademark, educating people who use the trademark wrongly. They work with dictionaries, run ads, and also do work with Wikipedia and so on. So far, it seems to be working. Xerox still has its trademark. Other brands, like Velcro, have also run ads hoping to avoid this fate.