Recently, I wrote about some trademark issues and today I would like to talk about how a trademark can lose its protection by becoming too popular. As I mentioned before, a trademark has its ultimate level of protection when it is filed with the US Patent and Trademark Office. So the easiest way for a trademark to lose protection is that the registration was abandoned or simply never refiled. This typically happens with small businesses that have a greater chance of changing, growing and shutting down.

By saying a company has lost their trademark protection is to say that competitors can use the mark, word, phrase or logo without infringing the rights of the first company. Once they lose their ability to claim against another for improper use, there is no trademark, only a publicly used identifier.

However, in some cases, the fact that a larger business has a product that has become so well-known, causes the big company to lose their protect. The policy behind this is that the USPTO is reluctant to protect a trademark or name that identifies the product and not the business. This is called trademark erosion, genericide, or a trademark becoming generic.

Examples of these type of trademarks are Aspirin, Dry Ice, Escalator, Thermos, Trampoline, Cellophane, and Videotape. These names became so popular that they described their product and not their company or creator. A thermos was an insulated beverage container, and was not considered as the company that originally made this product. Similarly, aspirin was shown to be considered a anti-inflammatory, sold over the counter, not a company that produced medicine. Zipper was originally the name of the owner of the company that created a device that joined two pieces of fabric by using an interlocking set of teeth, but soon the name only described the product and not the company or the owner.

This has happened to many companies and many have fought the process of their trademark becoming generic. I can remember see Xerox ads in magazines instructing customers to refer to using their machines as making a photocopy with a Xerox machine, not making a Xerox. Do not ask for a Xerox of a document, but ask for a copy using the Xerox machine.  Google has spent countless dollars combating the use of the phrase “googling it”, for the same reason.

Some companies include a description of the product after the name. Kleenex became Kleenex facial tissues, and Velcro became Velcro fasteners. Other companies include the word “brand” so the customer knows that the name identifies a company, not just a product. This is why Band-Aid became Band-Aid brand, which is a trademark commonly mistaken as a generic one, but they are still registered.

Companies struggle to protect their trademarks because they act as their identity to customers. If you lose your identity, its difficult to make new customers and to maintain regulars. Many companies see this as a necessary expense and a part of doing business, and to many a rose by any other name, smells like infringement and commercial loss.