Why is it that certain brand names are still able to maintain their identities even though they have clearly become generic.
For instance everyone I know says “Give me a bandiad” Not “I want an adhesive strip.” Same for
Kleenex
Xerox
Kool-Aid
Mace
I realize Xerox like once a year takes out an ad saying “You can’t Xerox a Xerox on a Xerox” But come on the name is in popular usage.
What gives?
kool-aid is a generic name?
Just because you SAY “gimme a bandaid” doesn’t mean that you’re gonna get one.
They copyrighted the term bandaid, or kleenex, or Xerox. Now you can SAY whatever you want, but you can’t use it in print to advertise something else.
Not only that, but you don’t often hear the word xerox on TV or read it in the paper so as not to give free advertising.
Bottom Line: they got the copyright BEFORE the term was a household name, not after. They keep renewing it but they sure aren’t going to prosecute you for slipping the word in…
Corporations may not slap handcuffs on you for using their brandnames as generic terms, but if you mis-use the brandname in print, you sometimes DO get hate mail from their legal departments, and theoretically could wind up in court. Many major corporations have in-house ‘watchdogs’ who keep their eyes on such things.
As an aside, Bayer lost the exclusive rights to the product name “aspirin” in the U.S. They smartened up by the time it came to Canadian rights, however, and in Canada, only Bayer-brands use the term “aspirin” on its label. All other brands use the term Aceta Salicylic Acid (or ASA).
Satan will probably recall better, but I remember seeing an interview with Gene Simmons in which he mentions that he put out a line of guitars under the copyrighted name “Axe.” As “axe” was a generic term for a guitar long before Simmons copyrighted it, I wonder if he could successfully defend the name from emulators?
The name was trademarked, not copyrighted.
Popular nicknames for objects have been trademarked before. What really matters is whether or not the trademarked name is likely to create confusion in the marketplace. Also the trademark would also have been determined to not be descriptive. In other words, you can’t sell a Guitar brand guitar, but apparently, you can sell an Axe brand guitar.
I don’t know whether or not this trademark is still in force however.
For what its worth…
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One factor is that for a brandname to become a generic, there usually has to be a court case that the owner loses. They do this by the plaintiff(s) (others who want to use the name for their product) showing that everyone associates the name with that kind of product and not just with the brand-owner’s product. This is expensive, so is actually rarely done.
For instance, the people who make fasteners that are similar to Velcro cannot call what they make velcro because that’s a trademark. If they wanted to use that word, they’d have to sue the American Velcro Corp for the rights. You’d think it would be easy to win such a suit. The standard way to do it is to have a consumer survey asking people what name they call such an object. And since virtually no one knows the generic of Velcro, any survey would be favorable to the plaintiffs in the suit. But they haven’t done it, probably because it’s too expensive. Or perhaps they can’t all agree to join in the suit.
Quite a few brand names have become generic:
cellophane
shredded wheat
corn flakes
aspirin (in the US)
As mentioned, it would take a court case to determine if kleenix is a generic. I suspect that companies that might have a chance of getting a trademark declared generic don’t rush to do it. Not only can it be chancy, but they don’t want someone to come after their own trademarks.
Writers Digest gets a significant amount of advertising income from “don’t mess up our trademark” ads. Once or twice a year, they do a trademark issue and everyone takes out ads in it.
If you make a trademark generic, you get a polite but firm letter (they use nastiness for later) explaining why it was wrong. You don’t actually have to do anything in response to the letter; the company sends it primarily to prove they are defending their trademark.
“What we have here is failure to communicate.” – Strother Martin, anticipating the Internet.
I don’t recall this, but I can say that every member of KISS, especially Gene, would patent, trademark and/or copyright the planet and claim ownership if they could. Money-hungry dicks…
Back to the OP, most trademarked names (aspirin is the most notable) get infringed upon, and finally accepted into common vernacular, because the company is not as rigorous as they need to be towards people who are doing the co-opting.
Hasbro, the current owners of the game Scrabble®, hold onto the name Scrabble® (even though it’s a perfectly good word unto itself) with every fiber of their being. The test you must pass to become an official Scrabble® Club Leader, has a few questions to do with the game, but mot of the test involves how to uphold the trademark of the game when advertising the club or tournaments.
Hasbro has gone to great pains in enforcing their trademark, including shutting down internet sites and getting software to be made unavailable. Some people have called them some nasty names for this.
However, the fact is that when you own a trademarked name or expression, you have to fight like hell and sometimes be a dick in order to keep it.
While the whole world ordering Jello instead of gelatain might sound like a good thing for Jello, when the day comes that everyone is making Jello (like everyone is making aspirin), they lose the money that comes from that trademark. Thus, Kraft - makers of Jello - successfully took the band Green Jello to court and made them change their name to Green Jelly.
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The Velcro people are notorious in the magazine business for suing your ass if you say “Velcro” and it’s not. So you have to say “hook and loop device” or something equally circuitous if it’s not actually Velcro.
Same with the Jacuzzi people—substitute “hot tub” or “whirlpool” if in doubt.
—Miss Copy Editor
A radio ad for an insurance company suggested that customers phoning the competition would not get to talk to a human being (as at their company), but would instead listen to “Muzak.” A week later, the same ads now said “music.” Trademark defense in action! (This all happened just within the last two or three weeks.)
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One factor in a court case could be whether people know it’s a trademark and also know the generic. With kleenex, I’d say most do, but not velcro. That would make things a bit chancy with kleenex.
As for aspirin, cellophane, (and I think) shredded wheat and corn flakes, there were court cases. Aspirin was basically lost because of WWI. Bayer couldn’t defend their trademark because of the war and other makers started to infringe on it. After the war they sued to get it back but lost.
When the patent ran out on cellophane, other manufacturers didn’t know what else to call the stuff. The court ruled that there was no generic so cellophane became the generic. (I hypothesize that this was the reason du Pont coined nylon as a generic and not a trademark.)
In the cases of shredded wheat and corn flakes, I’m not sure, but I think they were ruled as being too descriptive.
I would have to disagree. Most of these brands are common usage and it is stupid to pretend that they aren’t. I mean no one says he sprayed me with tear gas. They say I got maced. They even verbed the brand name Mace.
Kids don’t say give me a drink of reconstituted flavored powder. They say give me some kool aid mom. Virtually no one says I want acetomeniphen(sp?) they say give me a tylenol.
Probably 90% of people say, pass me a kleenex, or q-tip. Not can I have a facial tissue or a cotton swab.
These items have passed into generic use and should be treated as such. It is stupid to pretend that they don’t.
You won’t get an argument from me, but try telling that to the corporate lawyers.
Oh, and if you have the moxie™ to actually write them, please send a xerox™ of your letter to me. I’ll be wearing a day-glo™ dacron™ jumpsuit with a nylon(notTM) zipper(formerTM) repaired with scotch tape™ near the second dumpster™…
Well, sure you can’t circumvent the will of the people! If everyone wants to call every poster here “Markxxx,” for example, it would be tough for you - the holder of the trademark - or anyone else to get people not to SAY it. Freedom of speech and all…
However, the issue is that now, everyone markets aspirin. Whereas, while everyone says, “Jello,” you don’t see a ton of different gelatain products made by different companies with the name Jello on it.
Sure, a company might very well be happy to know that everyone is asking for Jello, or to make a xerox of something, but if the companies just let EVERYTHING go, it’s onluy a matter of time before someone else comes along and starts stamping their gelatain products with the word Jello, and if you are Kraft, do you want this?
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Another one that has become generic in everyday usage is “U-Haul.” I have heard people saying, “I rented a Ryder u-haul.”
The most vociferous company with regard to this is the company that makes Barbie dolls. If you so much as mention Barbie without that TM after the name, they will send thugs to come and get you. Gotta go, there’s the doorbell…
Does Kraft have the TM for the use of the word Jello for music, musical performance, musical recordings, etc.? A TM doesn’t give rights to the TM holder for all types of products, only for the types of products the TM is actually registered for use (or anticipated use.)
Unless of course, it’s a “famous mark”.
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