What Are Generic Trademarks?

Generic-TrademarksGeneric trademarks simply designate a product and/or service, instead of distinguishing the source of those products and/or services. Generic trademarks contain terms that instantly describe exactly what the product and/or service is. Simply put, generic trademarks actually describe the product or service (e.g., computer or law firm) and therefore cannot achieve trademark registration or trademark protection. Moreover, generic trademarks cannot gain trademark protection even if they obtain secondary meaning through advertising because they do not distinguish the source of the goods or services because all goods or services that are in the same category or class of products have the same generic name.

Rationale for Non-Protection of Generic Trademarks

The rationale for not allowing trademark protection for generic trademarks is that a business, entrepreneur or inventor should not be given exclusive rights to use words that actually describe a product and/or service. If the courts allowed protection of generic terms and generic design trademarks, this would allow a single entrepreneur or business to have a monopoly over the use of that term. For example, in one person or business held a trademark registration for the word “phone”, then all other makers of phones would have to use obscure terms to describe and identify their devices. This would make it nearly impossible for competition in the market because consumers would not be able to identify the product being described.

Generic trademarks actually name a product and therefore cannot obtain trademark registration. Generic trademarks cannot gain trademark protection even if they obtain secondary meaning through advertising because they are viewed as designating the product, good or service rather than distinguishing the source of the product.

Examples of Generic Trademarks

Some examples of generic terms would be: laptop computer, pool table, snow skies, surfboard, and trademark law firm. Each of these terms designate what the product or service is, but do not distinguish the source of the product or service. If a generic term is used within a trademark, the owner of the registered trademark will not be able to claim any exclusive rights to the generic term. Any generic term is free to be used by anyone in commerce.

Valid trademarks can also become generic if consumers begin to use the trademark in ways that cause the trademark to become the generic name for the product. Some popular examples of trademarks that have become generic enough to lose protection are THERMOS, ASPIRIN and VELCRO. Current trademarks that are close to becoming generic because of consumer misuse are BAND-AID, JACUZZI, XEROX and KLEENEX. These companies have prevented the loss of their trademark through heavy advertising and continual trademark enforcement.

A way to prevent a trademark from becoming generic, is to only use the trademark in advertising as an adjective, and never as a verb (i.e. to Xerox) or a noun (i.e. Xeroxes).