The English language is one big brand graveyard
Is Marketplace producer Tommy Andres making a photo-copy? Xeroxing? Self-tanning?
Turns out, the English language is a graveyard for brand names. We have a lot of words that were once trademarked brands.
Aspirin. Cellophane. Escalator.
Yo Yo. Trampoline. Saran wrap.
Yeah, Heroin was a brand. Like Nike. Or Aunt Jemima.
“There used to be a branded form of morphine called heroin,” says Roger Schechter who teaches law at George Washington University. There’s a great list here.
Genericide and the Menace of Slang
(Can someone please make a movie with that title?)
In some cases, companies just went out of business and their brand name lived on as nouns. In other cases, the trademark was taken from them. In all cases, the trademarked name had become a generic buzz word for a type of product. The trademark and a company’s rights to it then slip away into the roiling ether of vernacular English.
Intellectual property lawyers have a word for this: Genericide.
“It’s a disaster,” says Schechter: When trademark rights are lost, competitors can use the same word that you spent your life building up.
Sentenced to Death
It’s happened most often to companies that have invented something totally new, for which a word doesn't already exist.
“For example, a Frisbee,” says Ron Butters, professor Emeritus at Duke University. “What else do you call it?” (Frisbee, however, hasn’t yet lost its trademark).
“Company A will sue company B for trademark infringement, and company B will respond by saying ‘Your term has become generic and your mark needs to be canceled,” says Butters.
To prove it, lawyers would enlist linguists like Butters to do surveys and word counts in print, on TV, and online to see if people use a brand name in a generic way. That’s really all it takes.
Synonyms and Vaccines
But, Butters says, genericide “doesn’t happen very often anymore.”
There’s a reason so many of the examples date from the middle of the 20th century. These days, companies do everything they can to prevent genericide.
“A classic example is Xerox,” says Jed Wakefield, a partner at Fenwick and West, where he advises firms who are anxious about losing their trademarks. “Xerox years ago used to advertise to remind the public that Xerox is a brand name for a photocopier and it’s not a generic term for making a photocopy.”
What Xerox did there was give the public another word to use instead of Xerox. The word “photocopy.” It’s a kind of legal vaccine. A company that did not offer up any alternative noun soon enough was Trampoline. The trademark died, but the noun lived on.
Generitol (jargonium methyl legalese) Cures What Ails You
The pharmaceutical industry has become especially adept at this synonym technique, says Schechter.
“When Viagra comes off patent, there’s going to be an enormous number of companies wanting to sell ‘generic Viagra’,” he says. “But they can’t call it that.”
It's not just because Viagra is trademarked, but because Pfizer has offered an alternate name: Sildenafil Citrate. It’s clearly placed on every logo. And it’s not particularly catchy.
Have Your Cake And Brand It Too
Ideally, a firm these days could enjoy the best of both worlds: have their product become so popular that it begins to be used as a verb or noun, and still have everyone know it’s a brand at the same time.
“Like FedEx, someone might say 'I’ll FedEx that to you,'” says Wakefield. “One could certainly argue that’s promotional for the FedEx brand.” But FedEx the company would almost certainly not allow another shipping firm to use the word in any capacity.
“We counsel clients on where to draw the line, and ultimately where you draw those lines is as much a business question as a legal judgement.”