Genericization: Friend or Foe?
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.
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