![]() ![]() Secondary meaning is a consumer’s association with the mark to the product, such that it would be recognizable by the consumer. Descriptive marks require secondary meaning to be protected. For instance, the term “Oatnut” for bread would describe bread that had oats and nuts. Descriptive marks merely describe a potential feature of the product. For example, apple is a term for the fruit named apple and is a generic term. Generic terms simply describe the object. This spectrum-ranging from ineligible for protection to potentially eligible for protection-classifies words as generic terms, and marks as descriptive, suggestive, fanciful, or arbitrary. Hunting World, Inc., the Second Circuit devised a spectrum to determine how a mark could be classified as inherently distinctive. In the landmark case, Abercrombie & Fitch Co. Federally, a mark must be inherently distinctive or acquire secondary meaning to become distinctive, then the mark will receive trademark protection. The intent of the Lanham Act was to provide protections to source identifiers so consumers would not become confused when purchasing goods and to prevent a mark holder’s goodwill from being infringed upon. The legislature used their commerce power to establish federal trademark protections in the Lanham Act. For instance, trademark protection has been found in words, sounds, smells, flavors, and in the configuration and design of products. Trademarks can be anything, so long as the mark provides a source function. BackgroundĪ trademark is used to identify a source of a product or service. Section III provides an argument that brands need to continue to provide combative advertising to prevent marketing efforts from undermining their brands and destroying their trademarks. Section II explores the background behind trademark law and genericide and further details the steps some brands have taken to prevent genericide from occurring. This article discusses brands’ attempted efforts to fight genericide and prevent their products from losing trademark protection. Without such efforts, the owners of these brands may find themselves grabbing a kleenex instead of a Kleenex® brand tissue as trademarks are lost to the public domain via genericide. 6 Whitson Gordon, How a Brand Name Becomes Generic, N.Y. Currently, many trademarks are fighting to hold their trademark and are using advertising and marketing to differentiate themselves from the product. Thus, Thermos lost their trademark because the trademark “thermos” had become the product. ![]() 2022).įor instance, a thermos was originally called a vacuum sealed bottle however, because of Thermos’ aggressive marketing, consumers began to identify thermos as the bottle and not the brand behind it. Thomas McCarthy, McCarthy on Trademarks § 12:1 (5th ed. Genericide is a process that eliminates a trademark’s protection when consumers begin to identify the mark not with the source, but with the good itself. 154 (2004). Each term was originally a made-up word for use in a trademark and not the name of an actual product-until genericide killed their trademark protection. ![]() 1 John Dwight Ingram, The Genericide of Trademarks, 2 Buff. IntroductionĪt first glance, the terms yo-yo, escalator, aspirin, trampoline, and thermos all appear to have nothing in common with one another however, all have one similarity. By Jacob Metzger, Associate Member, University of Cincinnati Law Review Vol. ![]()
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