You know those black and white pictures that you look at and some see a vase and some see two faces? Or the one that looks like an old lady to some and a young lady to others?

That is what genericization is like to the modern business person.

Your marketing team will look at genericization and tell you to be thrilled. Your trademark attorney will look at genericization and tell you to be afraid.

Who should you believe?

Well, first – what exactly is genericization? Genericization is the process whereby a brand name stops just identifying a specific product from a specific source. Instead, the brand name becomes the general term for that type of product.

The best modern examples are things like Kleenex^® for facial tissues, Coke^® for soft drinks, and Scotch^® tape for clear adhesive tape. But this process is not new and many of the generic terms we take for granted were once brand names. Things like escalator, aspirin, and trampoline were once specific brand names of movable staircases, acetylsalicylic acid, and rebound tumblers.

Intellectual property lawyers love to give brand owners endless advice on how to avoid the horror of genericization (a process called “genericide” – which is a term equal parts brilliant and creepy). Simple steps such as always using the circle R symbol (®) after the brand name, only using the word as a noun – never a verb (which is why Xerox wants you to photo copy things instead of “xeroxing” them), and following the use of the brand name with the name of the category of product type (Kleenex® brand facial tissue for example).

These steps are good advice if you want to avoid genericization and there are reasons that a prudent brand owner would wish to do exactly that. Once genericization truly takes hold of a brand name it weakens the ability of the company to control it. When a company owns a trademarked brand name it has many ways in which it can control how that brand name is used. But much, if not all, of that disappears when genericide takes place. This is, not surprisingly, upsetting to trademark lawyers.

But it is a dream come true for your marketing department!

Think about it. What genericization means to a marketer is that whenever someone thinks of that type of product, they ALWAYS think of you. How can it get better than that? Your product is the foundation of all thoughts a consumer will have on those products. Every other product in that category is compared to your version. Essentially your product is the Platonic ideal to which all other examples must strive to match.

If you can’t make money with that advantage then you really shouldn’t be in business at all.

So what is a CEO to do?

Here is where the importance of what we can call secondary or complimentary marks comes into play. These marks are other trademarked words or images that—while not the brand name themselves—are also strongly connected to the brand. A great example of this is the Nike “swoosh” logo. Few Americans can look at that logo and not think of Nike. Not only does the swoosh reinforce the name and the name reinforce the swoosh so that the brand’s place in a consumer’s mind is stronger than ever, it also provides the brand a fallback position.

Even if the term “Nike” became the generic word for athletic footwear, the brand Nike could still easily distinguish its shoes from all of its competitors by using the swoosh logo. And it would retain all of its rights over that logo regardless of the legal status of the word “Nike”. So, the development of strong secondary or complimentary marks is valuable as both a long-term growth strategy and as defensive preparation.

But in the end, while it does make sense to take reasonable steps to maintain control of your brand identifiers, genericization should probably be seen for what it is—a problem of success. People didn’t start calling soda pop “coke” because they DIDN’T love Coca-Cola®…quite the opposite. They loved it so much, and it so totally dominated the market, that Coke® and all other soft drinks became indistinguishable in their thoughts. A legal problem? Sure. But a problem you only get when your brand is doing very, very well.

The same is true with counterfeit products. In all my years as an anti-counterfeiting attorney I have never come across a counterfeit Zune®. Remember Zune®? Microsoft’s answer to the iPod®? Actually, it wasn’t much of an answer and the public overwhelmingly rejected it. Which is why you can’t find a counterfeit version. If no one wants a real one then no one will want a fake one either. So if no one is making a fake version of your product, you might be in trouble.

So my advice to brands struggling with genericization? Take heart! There are far greater problems to have than too much success.

William Mansfield is director of intellectual property at ABRO.

When it comes to protecting intellectual property, most people think of the Big Three: copyrights, patents, and trademarks, which I covered in an earlier article. Now I’m going discuss two of the lesser-known but equally interesting areas of IP: trade secrets and the right of publicity.

KEEPING AN INVENTION SECRET

Let’s say you have an invention. You don’t want your competitors copying it. Most of the time under these circumstances, you would then want to patent that invention.

But not all of the time. The tradeoff for a patent is that the government will grant you a monopoly on the use and sale of your invention for a limited time. However, you have to expose everything about your invention to the world. From a social standpoint this advances inventiveness: your competitors can’t just make what you made, but they have a platform to build on what you made and make it even better.

This self-exposure puts you at greater risk of criminals producing unlicensed and illegal versions of your product. After all, you essentially just gave them the blueprint on how to make what you are making.

Another option for an invention is a trade secret. If you take key actions to keep anyone from discovering how to reproduce your invention, most countries will allow you to take legal action against anyone who illegally obtains those secrets and uses them without your permission.

A protectable trade secret must be something not known already to the general public. Keeping it secret must provide the inventor some sort of economic advantage. And you have to take reasonable steps to keep it secret, at the very least attempting to control who has access to the information and make them agree to keep it secret.

There are several advantages to taking the trade secret, as opposed to the patent, route. Patents can take years to issue, but a trade secret is protected from the beginning. Patents cost thousands of dollars. Protecting a trade secret properly can also cost a great deal, but it doesn’t have to. Much depends on how many people have to know the secret in order to turn it into money.

Patents eventually expire. But a trade secret can last forever. Coca-Cola has kept its formula secret since 1886.

Just as a patent isn’t always the best tool, neither are trade secrets. Some inventions are so easily reverse-engineered that there is nothing for a trade secret to protect. Also, the ability to sue someone after they have exposed your secret to the world may be of little comfort if that exposure marks the end of a profitable business.

PROTECTING THE RIGHT OF PUBLICITY

The right of publicity is one of the youngest forms of intellectual property to be generally recognized internationally. It is also, in many ways, the least understood and most controversial.

The right of publicity is the right that a person has to control the commercial use of their name, image, signature, and other identifiers.

The right of publicity generally pops up only when we’re talking about the rich and famous. Most laws require the unauthorized use of someone’s publicity right to be a commercial venture. Billions of dollars are spent annually to license the images and endorsements of famous persons and to connect them to products and services sold globally. That’s why these intangible rights have value to the people who own them.

Right of publicity laws vary greatly and it is an area of the law that is still much in flux. It is in some ways the opposite of a right to privacy. But in many ways it represents the same desire – a desire to control what, when, and how the world encounters a person’s identity.

Controlling the exploitation of someone’s identity gets harder and harder with each new technological advancement. So no one should expect this area of the law to settle down anytime soon.

William Mansfield is director of intellectual property at ABRO.

Intellectual property rights come in a variety of forms, each one different from the other, offering varying strengths and weaknesses appropriate for achieving different goals. In order to use the right one at the right time it is important to be familiar with the types and understand some basic facts. There are variations around the world, but in most countries these three principle I.P. rights are similar the majority of the time.

INVENTION PATENTS PROVIDE EXCLUSIVITY

A patent is an exclusive right, granted by the government, which allows an inventor to use and sell an invention he or she has created. However, that monopoly doesn’t last forever as the most common type of patent in the U.S. lasts only 20 years. During this 20 year term, the inventor can prevent anyone else from using the invention without his or her permission.

The main issue faced by patent offices around the world is patentability—how to decide when someone has invented something worthy of a patent. In the U.S. system, an invention needs to be unique, non-obvious and useful, in that the invention is real and not a hypothetical creation.

COPYRIGHTS CONTROL CREATIONS

A copyright is also an exclusive right to control a creation—but this time the creation is artistic and often has no practical use. Typical items covered by copyrights include books, paintings, photographs, movies, music, etc.

A copyright means that the creator, or author, of a work gets to decide if, when and how the creation is distributed and/or copied. The author also decides who is allowed to make derivative edits such as translations, adaptions, etc.

As a copyright does not cover the title of a work or a creation consisting of information commonly available to everyone (i.e. a basic calendar), it is important to note that copyright law covers an expression of an idea rather than an actual idea.

Originally, obtaining a copyright took many formal steps and processes of approval, but the world has moved away from such formalism. Now, a copyright is considered to automatically exist on every creative work that is produced. If you want to enforce that right as a practical matter you will still need to register it, but conceptually you own a copyright in every email you’ve ever written and sent.

TRADEMARKS TRAVEL THE WORLD

For most businesspeople, trademarks are the I.P. right that matters most. Trademarks cover source identifiers—words, images, or designs that help a consumer to know who produced and distributed the products and services that they purchase. As many products are sold outside of the country in which they are produced, being able to identify the source of a product is essential for consumers so they can pick good products and punish bad producers.

On the flipside, a good trademark also makes a company vulnerable to counterfeiters, as trademark imitators steal from both consumers and businesses when they sell goods under stolen brand identities.