[quote] Originally posted by Cecil The Flambeau Plastics company of Baraboo, Wisconsin, purchased Duncan Toys in 1968 and made plastic Duncan Yo-yos (same shape and size as the original wooden model, the Duncan 77). They fought to keep the name “yo-yo” trademarked, but that battle was lost in 1965–the Federal Court of Appeals ruled that the term “yo-yo” was so widespread that it had become part of common speech. (Aside: The word “yo-yo” has now taken on wider significance, and can mean vacillation, as when applied to a politician, or jerk, as when applied to a dimbulb.)[/q]
I can think of several currently trademarked names that are “so widespread that (they have) become part of common speech.” Examples include; Band-Aid™, Frisbee™, Rock Shocks™(shock absorbing forks used on the front of mountain bikes), Walkman™, Indiglo™, and Tevas™(athletic sandals). All of these products have been imitated by their competitors and have been given names of their own. Somehow, these brands that for the most part are the most popular in their respective markets, have managed to limit and maintain the use their trademark names to only themselves.
Has the 1965 Federal Court of Appeals ruling become outdated, or have the products not yet been ruled to be “part of common speech” in the court of law?
Can anyone think of any other examples of trademarked names we use to describe a type of product that has been copied by competitors? I would like to hear more.
The most famous example is “aspirin” which wsa the tm of Bayer. They lost their tm name as the term became generic. Since then, companies have been very careful to make sure their tm names are not becoming generic. Vaseline, for example, scours the periodicals for violations.
Vaseline is a tm name for a petroleum jelly. It is used indiscriminately much more than the names you mentioned. Those brands you mentioned may be generic to you and your conferees, but they are not generic in print. If “vaseline” is used generically in print, the company would immmediately request a correction.
Trademarks become public domain on a case-by-case basis. A court has to rule each time. So if you want to challenge, say, “Band-Aid,” you need to take Johnson and Johnson to court and convince the judge the term has become generic.
As far as names that have lost their trademark, here’s a list off the top of my head:
shredded wheat
cellophane
aspirin (in the U.S.; it’s still a trademark in Canada)
corn flakes
thermos
Because of the court costs, it’s rare for a company these days to try to get a trademark declared generic. Companies defend their trademarks vigilantly.
Here is another idea. What else would you call a yo-yo or asprin. Band-aids although it has become a generic name can still be called and adhesive bandage, Walkman can still be called a portable cassette player with am/fm radio. I think that ruling would only be applicable if there were no other names to call a something by.
That’s just my opinion you could be wrong
It all has to do with how aggressively the company in question defends its trademarks. Pick up a copy of “Writer’s Digest” at the newsstand one month and you will find it littered with ads from companies reminding writers that, for example, “'Post-It ’ is a registered trademark of the 3M Corporation. Please do not use ‘Post-It’ as a generic name for note papers with adhesive backing.”
You and your friends might refer to all portable music devices as a “Walkman,” but anyone who makes, sells, or writes about them had better refer to them as “personal stereos,” “personal tape players” or “personal CD players,” or risk getting whopped upside the head by lawyers from Sony Corp.
As an instructive example, a band I used to play in in Cleveland was named Electrolux. Despite the fact that we were a strictly local band playing to extremely small audiences and with nothing for sale at the time, it was obvious that Electrolux Corp. regularly searched the Web for copyright violations. They sent me, as the contact listed on our site, a nice cease-and-desist letter with about 100 lawyers’ names on the letterhead. (Which led to a spirited discussion in which I suggested “Fish & Neave,” the name of the law firm, as the new band name.)
Not true. The validity of the trademark has nothing to do with whether another generic term exists. Technically speaking, I believe trademarks are used as adjectives rather than nouns, so there must be a generic description of the product to serve as the noun. That’s why you have “Band-aid brand bandages”, “Aspirin brand pain reliever”, and “Yo-yo brand whatever-the-heck-it-is”. “Kleenex brand facial tissue” is another example. They work very hard defending the Kleenex brand from becoming generic.
High on the list of all-time silly trademark lawsuits is Mattel’s continuing persecution of my favorite band, the Naked Barbies. Do they really thing that dilutes their value?
My favorite example of corporate bullying is the one suffered by Roadkills-R-Us. It’s amazing the lengths some corporations will go to protect perceived infringements. In the rru.com example, a group of lawyers came out to offer legal representation. Their organization’s name: Torts-R-Us.
Personally, I love the term “emigrette” as used in the Staff Report. I’m thinking of going out and buying an emigrette just so I can start spreading the word around.
“Elevator” was trademarked by the Otis corporation at one time. Somebody probably owns the name “escalator”, too. These names can be incredibly valuable. Coca-Cola’s most valuable asset is likely the name Coca-Cola.
Welcome to one of the few areas of life in which popularity can be your downfall: “genericizing”. If you get too popular and dominate the field, before long your product’s name becomes the only name. As has been pointed out, companies with valuable trademarks greatly fear genericizing, and go to great lengths to prevent it from happening. Cellophane, aspirin and yo-yo are probably the most famous examples. A list of today’s most-threatened trademarks would have to include Teflon, Kleenex, and Xerox.
Xerox strikes me as a word that perhaps should be genericized, since the company created the word “xerography” from the Greek words for “dry writing” to describe the copying process. To me, it seems like a natural linguistic progression. Then again, I don’t own the trademark, and I’m sure I’d feel differently if I did.
I understand that the inventor of the Thermos purposely didn’t patent his product and considered it a “gift to the world”. The word itself came about as the result of a “Name Our Product”-type contest and was subsequently trademarked. The trademark is still enforced; you’ll notice that Thermos’s competitors, such as Aladdin, sell “vacuum bottles”.
But do you suppose they watch “Who Wants to be a Millionaire?”
Earlier this week, I was surfing by and caught the following question:
“Which of the following is NOT kept in a ‘Palm Pilot?’ A. Addresses B. Phone Numbers C. email D. Vaseline”
(The strange part is that it got barely a chuckle from anyone in the studio. I was howling!)
Well, it doesn’t all have to do with that. Yes, if a company does nothing to protect a trademark, then it will not be able to defend it in court. But even if the Vaseline company hires time during “Survivor” to protect its trademarks, it’s still not protected fully. If a court finds that everyone and his brother uses the trademark in a generic sense, the trademark can be yanked.
Veering off topic from the OP, I imagine that as a lawyer it must be a great and easy job to be an intellectual property attorney vigorously sending out nasty cease and desist letters to people such as pldennison. Its the legal equivalent of being a big nasty junkyard dog. Their mantra must be “Bow before us and change your name immediately or we will grind you into dust.”
To my mind the silliest trademark is the Olympics. The first Olympic games were in ancient Greece, and then some people came along late in the 19th centrury and revived them, and claim exclusive rights to own the name, which they took out of the public domain. It seems to me that having lain dormant since ancient times until 1895 or thereabouts that the name Olympics had long since become public domain, such that no one could claim exclusive ownership of it. But I’m sure the IOC has a highly paid law firm that will say otherwise should I ever attempt to open up the “Olympic Liquor Store”.