A generic trademark is a term that is commonly used to refer to the goods or services that it represents, rather than acting as a source identifier. For example, “aspirin” is a generic term for a type of pain reliever and cannot be trademarked. Generic terms cannot be trademarked because they are considered to be part of the public domain and are available for anyone to use. Moreover, generic trademarks cannot achieve trademark registration with the USPTO (United States Patent & Trademark Office) even if they obtain secondary meaning through advertising because they are viewed as identifying what the product or service is rather than distinguishing the source of the product or service.
Rationale for Not Registering Generic Trademarks
The rationale for not allowing generic trademarks to be registered is that a person or entity should not be given exclusive rights to use words that generically identify a product and/or service. If the courts allowed trademark protection of generic terms and generic design trademarks, this would allow a single person or entity to have a monopoly over the use of that term. This would prevent any other person or entity from describing their goods or services. If one person had a registered trademark for the word “wetsuit”, then all other sellers of wetsuits would have to use obscure terms to describe their wetsuits. 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 Terms
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.