Generic trademark
From The Art and Popular Culture Encyclopedia
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A generic trademark, also known as a genericised trademark or proprietary eponym, is a trademark or brand name that has become the generic name for, or synonymous with, a general class of product or service, usually against the intentions of the trademark's holder.
A trademark is said to become genericised when it began as a distinctive product identifier but has changed in meaning to become generic. A trademark typically becomes "genericised" when the products or services with which it is associated have acquired substantial market dominance or mind share such that the primary meaning of the genericised trademark becomes the product or service itself rather than an indication of source for the product or service. A trademark thus popularised has its legal protection at risk in some countries such as the United States and United Kingdom, as its intellectual property rights in the trademark may be lost and competitors enabled to use the genericised trademark to describe their similar products, unless the owner of an affected trademark works sufficiently to correct and prevent such broad use.
Zipper, aspirin and heroin are examples of trademarks that have become genericized in the US.
Genericisation or "loss of secondary meaning" may be either among the general population or among just a subpopulation, for example, people who work in a particular industry. Some examples of the latter type from the vocabulary of physicians include the names Luer-Lok (Luer lock) and Port-a-Cath (portacath), which have genericised mind share (among physicians) because (1) the users may not realize that the term is a brand name rather than a medical eponym or generic-etymology term, and (2) no alternate generic name for the idea readily comes to mind. Most often, genericisation occurs because of heavy advertising that fails to provide an alternate generic name or that uses the trademark in similar fashion to generic terms. Thus, when the Otis Elevator Company advertised that it offered "the latest in elevator and escalator design," it was using the well-known generic term "elevator" and Otis's trademark "Escalator" for moving staircases in the same way. The Trademark Office and the courts concluded that, if Otis used their trademark in that generic way, they could not stop Westinghouse from calling its moving staircases "escalators", and a valuable trademark was lost through genericisation.
The pharmaceutical industry affords some protection from genericisation of trade names due to the modern practice of assigning a nonproprietary name for a drug based upon chemical structure. Brand-name drugs have well-known nonproprietary names from the beginning of their commercial existence, even while still under patent, preventing the aforementioned problem of "no alternate generic name for the idea readily comes to mind". For example, even when Lipitor was new, its nonproprietary name, atorvastatin, was well known. Examples of genericisation before the modern system of generic drugs include aspirin, introduced to the market in 1897, and heroin, introduced in 1898; both were originally trademarks of Bayer AG. A different sense of the word genericised in the pharmaceutical industry refers to products whose patent protection has expired. For example, Lipitor was genericised in the U.S. when the first competing generic version was approved by the FDA in November 2011. In this same context, the term genericisation refers to the process of a brand drug losing market exclusivity to generics. For example, industry analysts expect several other blockbuster drugs to undergo genericization by the year 2020.
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