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Victims of their Own Success: Brand Genericide

Friday, 11 July 2014

The BBC recently brought attention to the odd phenomenon of brand ‘genericide’. But what exactly is it and who needs to worry about it?

Businesses that own high-profile brands are the ones that mainly need to be concerned about brand genericide but it has implications for wider intellectual property protection.

In some senses it could be seen as a nice potential problem to have as it relies on a brand being hugely successful, but failure to prevent it from reaching its final conclusion could present a serious loss of value to businesses.

The ability of internet platforms such as Amazon and eBay to create almost overnight brand sensations and at the same time to enable infringement on a mass scale means it is a significant legal issue for affected businesses.

Genericide Examples

Simply put genericide is the loss of legal protection for brands or trademarks that become used for the name of a product rather than indicating the exclusive source of that product. In other words the name becomes a generic term for that type of product.

Famous examples include Hoover, Jacuzzi, Aspirin (in certain countries) and Escalator which are now all used as generic terms for particular items. Although the manufacturers may have started out hoping that their product would become so widely used that it was generic, losing the exclusive use of their brand name probably did not feature high on their wish list.

If a term begins to be used in a generic way and companies fail to actively combat it to protect their brand or trademark from being diluted, they risk losing their ability to enforce their intellectual property rights in future. Once companies lose control of their brands and their distinctive character no longer exists, trademarks can be cancelled and third party competitors can begin attaching the powerful former brand name to their products.

Monitoring and Enforcing Brands

Companies such as Google and Twitter have gone to great lengths to prevent the generic use of their trademarks. Google for example objects to the word “googling” being used as a generic expression for searching the internet with a search engine while Twitter noted concerns in its IPO documents about the potential generic use of the term “Tweet” for posting short comments on the internet.

Monitoring and protecting valuable intellectual property rights should be high up on the agenda for any business that has value tied up in brands or trademarks. While it might not be possible to prevent terms being used generically in common language, brands can take steps to prevent it from happening in written form on the internet or elsewhere.

Comment

Brand owners should of course avoid generic usage themselves in marketing and advertising materials.

Tackling innocent misuse of intellectual property rights is an important element in the battle against genricide but more important is the fight against deliberate infringement by organised fraudsters.

Confusingly, the rules vary internationally – Aspirin for example is only generic in certain countries such as the UK and the US.

For specialist advice contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.

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