Generic Terms

Generic TrademarksGeneric trademarks actually name the product and therefore cannot obtain trademark registration and are not entitled to trademark protection. Moreover, generic trademarks cannot gain trademark protection even if they obtain secondary meaning through advertising because they are viewed as designating the product, good or service rather than distinguishing the source of the product. A generic trademark does not distinguish the source of the goods because all goods that are in the same category or class of products have the same generic name.

Rationale for Non-Protection of Generic Trademarks

The rationale for not allowing trademark protection for generic trademarks is that a business, entrepreneur or inventor should not be given exclusive rights to use words that generically identify a product and/or service. If the courts allowed protection of generic terms and generic design trademarks, this would allow a single entrepreneur or business to have a monopoly over the use of that term. This would prevent anyone else from describing their goods. If one person had trademarked the word laptop, then all other makers of laptops would have to use obscure terms to describe their laptops. This would make it nearly impossible for competition in the market because consumers would not be able to identify the product being described.

Examples of Generic Trademarks

Some examples of generic terms would be: wood table, laptop computer, skateboard, surfboard, snow skis, ping pong table, and trademark law firm. These examples all designate the product and or service, not the source. If a generic term is used within a trademark, the owner of the trademark will not have any exclusive rights to the generic term being used in commerce. Therefore, these terms are free to be used by anyone.

Valid trademarks can also become generic if consumers begin to use the trademark in ways that cause the trademark to become the generic name for the product. Familiar examples of trademarks that have become generic enough to lose their protection are THERMOS, ASPIRIN and VELCRO. Current trademarks that are close to becoming generic because of consumer misuse are BAND-AID, JACUZZI, XEROX and KLEENEX. Thus far, these companies have prevented the loss of their trademark through heavy advertising.

To prevent your trademark from becoming generic, only use the trademark in advertising as an adjective, and never as a verb (i.e. to Xerox) or a noun (i.e. Xeroxes).