# When was the last time a product lost trademark protection after its name became genericised? **URL:** \ **Category:** Factual Questions\ **Created:** [May 16, 2022, 6:05am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484 "2022-05-16T06:05:50Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 17, 2022, 9:24pm UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/41 "2022-05-17T21:24:02Z")
> [@commasense](#): > > First, anyone who was told “if you want to take a [copyright] matter to court, you just go ahead and register before suing” would be getting very bad advice. I would not give anyone that advice. However, a _lot_ of copyright owners don’t register until just before filing a lawsuit. There are many reasons they might choose to do this, among them: (1) they didn’t know any better, (2) they got bad advice, (3) they couldn’t afford to register all their works, not knowing which ones would be infringed and which not, (4) all they are interested in are the ordinary remedies, especially injunctive relief, or (5) they haven’t published their works. And that is the important point: that there _are_ remedies. They aren’t necessarily the _best_ remedies, but they are important remedies. Injunctive relief can be, depending on the situation, the remedy that the copyright owner is most interested in under the circumstances. This is not a rare situation at all. And any potential infringer or outside observer–or indeed prospective copyright owner–who goes around thinking that registration is equivalent to copyright ownership would be making a huge mistake. And my point is that using “copyrighting” to mean the same thing as “registering” puts you in that trap. They are _not_ equivalents. They aren’t even close. ---
**Author:** ![Martini\_Enfield](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/martini_enfield/32/11123_2.png) [@Martini\_Enfield](https://boards.straightdope.com/u/Martini_Enfield)\ **Post date:** [May 17, 2022, 10:17pm UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/42 "2022-05-17T22:17:34Z")
Just to make things even more complicated, in many countries (including Australia, where I am), you don’t register copyrights with the Government. There is a Copyright Agency here you can register works with, but it’s not “The Government” and it’s more for the purposes of getting royalties from stories/artworks etc, not for being able to prove you came up with something first. ---
**Author:** ![Atamasama](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/atamasama/32/12961_2.png) [@Atamasama](https://boards.straightdope.com/u/Atamasama)\ **Post date:** [May 17, 2022, 10:53pm UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/43 "2022-05-17T22:53:02Z")
So, for me to understand the situation, is it accurate to say that registering a trademark or copyright (I know they’re not the same, so this might not be right to lump them together) is like registering a phone number? In the sense that registering that number isn’t what gives you that phone number (you already had it), but it publishes it where someone can see it and be made aware of it. That’s just an analogy I’m trying to use to make sense of things. I don’t know if it’s at all correct or I missed the point entirely. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [May 17, 2022, 11:42pm UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/44 "2022-05-17T23:42:46Z")
More like getting a marriage license in a jurisdiction that allows common law marriages, I would think. Without the license, it’s more difficult to prove you were married should that become necessary. Like how it’s more difficult to enforce your trademark if you haven’t registered it. ~Max ---
**Author:** ![echoreply](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/echoreply/32/3641_2.png) [@echoreply](https://boards.straightdope.com/u/echoreply)\ **Post date:** [May 17, 2022, 11:54pm UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/45 "2022-05-17T23:54:01Z")
> [@Atamasama](#): > > That’s just an analogy I’m trying to use to make sense of things. I don’t know if it’s at all correct or I missed the point entirely. It might be easiest to describe it without any analogies. I’ll only address copyright, because it’s what I’m much more familiar with. This is all for the US, but due to treaties, trade agreements, and stuff, the broad strokes are similar in many countries. When I open the camera on my phone, and take a picture, I have a copyright on that picture the moment it is captured. When I open an editor on my computer, and write out 1000 words to start my new manifesto, I have a copyright on those words. If somebody comes along and takes the picture off my phone, or the words from my computer, and reproduces them, they are (potentially) violating my copyright. That person can be sued, but as @commasense explains, without a copyright registration, what the court can do is very limited. Probably the most that will happen is the violator will be told to stop it. If I take my picture or words and go through the process of registering the copyright I’ll get several benefits. The statutory damages as @commasense describes is a big one, and it also stakes my claim that the work is mine and was created by a certain date. Copyright is in fact so automatic, that if I want to create a work and have it _not_ be copyrighted, I have to go out of my way to put it in the public domain. There are other options such as, creative commons licenses, where I retain copyright, but allow other people to use the work if they agree to follow certain rules. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 18, 2022, 12:28am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/46 "2022-05-18T00:28:49Z")
> [@echoreply](#): > > Copyright is in fact so automatic, that if I want to create a work and have it _not_ be copyrighted, I have to go out of my way to put it in the public domain. Indeed, it’s somewhat doubtful whether there is an actual way to “un-copyright “ something, other than to promise to the prod that you won’t enforce your copyright. ---
**Author:** ![GreysonCarlisle](https://avatars.discourse-cdn.com/v4/letter/g/a87d85/32.png) [@GreysonCarlisle](https://boards.straightdope.com/u/GreysonCarlisle)\ **Post date:** [May 18, 2022, 12:29am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/47 "2022-05-18T00:29:02Z")
> [@echoreply](#): > > That person can be sued, but as @commasense explains, without a copyright registration, what the court can do is very limited. But see [Fourth Estate v Wall-Street.com (2019)](https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf). For most works, you have to have a fully processed registration before litigation can proceed.   > [@](#): > > Copyright is in fact so automatic, that if I want to create a work and have it _not_ be copyrighted, I have to go out of my way to put it in the public domain. There are other options such as, creative commons licenses, where I retain copyright, but allow other people to use the work if they agree to follow certain rules. There is really no good mechanism anymore for putting your work into the public domain. You can send a dedication to the Copyright Office, but how legally binding that would be is unclear. You can use a CC0 license, but that is still a license. Best bet is just to not sue anybody for infringement. ---
**Author:** ![ChockFullOfHeadyGoodness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chockfullofheadygoodness/32/511_2.png) [@ChockFullOfHeadyGoodness](https://boards.straightdope.com/u/ChockFullOfHeadyGoodness)\ **Post date:** [May 18, 2022, 12:39am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/48 "2022-05-18T00:39:32Z")
> [@GreysonCarlisle](#): > > There is really no good mechanism anymore for putting your work into the public domain. You can send a dedication to the Copyright Office, but how legally binding that would be is unclear. You can use a CC0 license, but that is still a license. Best bet is just to not sue anybody for infringement. This tangent may be its own thread, but… suppose I want my work of brilliance to be public domain, and I live my entire life without suing anybody, despite numerous adaptations of the work being made. Currently in the US copyright is life of author + 70 years. Can I insert terms in my will that say my heirs may not pursue any remedies for copyright violations before the 70 years is up and would that clause be legally enforceable? ---
**Author:** ![GreysonCarlisle](https://avatars.discourse-cdn.com/v4/letter/g/a87d85/32.png) [@GreysonCarlisle](https://boards.straightdope.com/u/GreysonCarlisle)\ **Post date:** [May 18, 2022, 12:45am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/49 "2022-05-18T00:45:31Z")
> [@ChockFullOfHeadyGoodness](#): > > Can I insert terms in my will that say my heirs may not pursue any remedies for copyright violations before the 70 years is up and would that clause be legally enforceable? That’s outside my wheelhouse, but I would guess that no, it wouldn’t be legally enforceable. But placing the copyright into a trust with stipulations might work. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 18, 2022, 12:58am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/50 "2022-05-18T00:58:35Z")
IANAL, but… I don’t think you can restrict your heirs that way (something about a “dead hand”), but I think that if you grant a very broad license, it would continue to be granted. ---
**Author:** ![echoreply](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/echoreply/32/3641_2.png) [@echoreply](https://boards.straightdope.com/u/echoreply)\ **Post date:** [May 18, 2022, 1:26am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/51 "2022-05-18T01:26:50Z")
Another very frustrating thing with both copyright and trademark is that the cat is both dead and alive until a judge makes a ruling (and all appeals are exhausted). Is something infringing on a similar other thing? Maybe, but nobody knows for certain until after a trial. Is something safe from litigation because it’s really not at all like that other thing? Nope, anybody can sue for anything, and it might take an expensive court battle to determine that it really isn’t infringing. This thread is interesting. I hadn’t realized that trademarks were still being genericized. All of the stuff I read is things like Conde Naste sending threatening letters to a 150 year old pub in Vogue, England, because the pub’s name is similar to one of Conde Naste’s publications. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 18, 2022, 1:32am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/52 "2022-05-18T01:32:27Z")
> [@echoreply](#): > > > [@Atamasama](#): > > > > That’s just an analogy I’m trying to use to make sense of things. I don’t know if it’s at all correct or I missed the point entirely. > > It might be easiest to describe it without any analogies. I agree with Echoreply. Analogies are difficult. But think of it this way. Every _emphasized_ term is a legal term of art with its own complex definition. 1. A copyright or a trademark is a type of property, like a car or a house. But each type of property has its own set of definitions, characteristics, associated rights, ways of coming into being, etc. 2. A copyright comes into being when a creator (_author_) creates a _creative_ and _original_ _work of expression_ and _fixes_ it in a perceivable medium. A trademark comes into being when a provider of goods or services begins _using in commerce_ a _distinctive_ indicator of the source of goods or services. 3. As soon as the copyright or trademark comes into existence under No. 2, the owner of the intellectual property has certain enumerated exclusive rights. 4. In addition to those enumerated exclusive rights, the owner can get further benefits by registering a claim in that intellectual property with the appropriate government agency. So, you see, the property didn’t come into existence due to registration. And you didn’t earn your rights in that property due to registration. But registration brings additional benefits. Above I mentioned a car. You can become the owner of a car by purchasing it from someone. And by acquiring that ownership, you have certain benefits. For example, you can sell it, or tear it apart, or repair it, or operate it on private property. But when you register that ownership with the department of motor vehicles, you get the benefit of driving it on public roadways. Now, this isn’t an _exact_ analogy, because until your register your car, you are denied the most important benefit of car ownership. It’s not quite the same with copyrights and trademarks, because, for the most part, you can exercise many of the rights of ownership _without_ registering them. The discussion above shows you that there very well may be extremely strong incentives to register your claim of ownership (and there are reasons for that). However, you never _have_ to register. And, unlike with a car, the most common uses of that property aren’t denied to you until you register. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 18, 2022, 1:35am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/53 "2022-05-18T01:35:33Z")
> [@echoreply](#): > > Another very frustrating thing with both copyright and trademark is that the cat is both dead and alive until a judge makes a ruling (and all appeals are exhausted). True. No one can tell you _definitively_ that the copyright or trademark exists and who the owner is, unless and until that issue is brought before a court and the court rules on it. Note that all these characteristics make copyrights and trademarks very different from patents. A patent comes into existence when the government chooses to grant you a patent. Until then, you have nothing. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 18, 2022, 1:38am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/54 "2022-05-18T01:38:47Z")
> [@GreysonCarlisle](#): > > You can use a CC0 license, but that is still a license. Indeed, granting any license–including a Creative Commons license–implies that the copyright exists and that there is an owner. ---
**Author:** ![Martini\_Enfield](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/martini_enfield/32/11123_2.png) [@Martini\_Enfield](https://boards.straightdope.com/u/Martini_Enfield)\ **Post date:** [May 18, 2022, 2:22am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/55 "2022-05-18T02:22:46Z")
> [@Acsenray](#): > > True. No one can tell you _definitively_ that the copyright or trademark exists and who the owner is, unless and until that issue is brought before a court and the court rules on it. This is a serious issue in the games preservation scene, where you’ve got all these old video games (from the 1980s and 1990s) where the company that made them no longer exists (either because it went bankrupt or got bought by someone else) and the IP has been sold/transferred to someone else, who has themselves gone bankrupt or been bought by someone else, and then _that_ someone else got bought out by a different company, who themselves… you get the idea. And now it’s 30-40 years later and absolutely no-one has any idea who actually owns the IP/copyright. ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [May 18, 2022, 2:54am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/56 "2022-05-18T02:54:48Z")
[Orphan works](https://www.copyright.gov/orphan/) have been a serious issue in all areas of copyright, not just games, for a long time. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [May 18, 2022, 6:25am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/57 "2022-05-18T06:25:26Z")
> [@bob\_2](#): > > …Google with Bing. Hmmm… I see your problem. ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [May 18, 2022, 6:31am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/58 "2022-05-18T06:31:35Z")
> [@echoreply](#): > > All of the stuff I read is things like Conde Naste sending threatening letters to a 150 year old pub in Vogue, England, because the pub’s name is similar to one of Conde Naste’s publications. I know you already know this, but just for the benefit of the discussion: Actions like this don’t necessarily mean the trademark holder has a legitimate complaint or even that they expect to prevail. Maybe yes, but broadly speaking these letters are generated almost entirely to establish a record of the trademark holder defending its brand, in order to have evidence that can be deployed in an _actual_ infringement matter. If they don’t take action on every little thing, the accused brand thief can counterargue that they weren’t serious about defending the mark. I’m sure it’s exhausting, but that’s the legal framework. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [May 18, 2022, 6:31am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/59 "2022-05-18T06:31:49Z")
> [@ChockFullOfHeadyGoodness](#): > > This tangent may be its own thread, but… suppose I want my work of brilliance to be public domain, and I live my entire life without suing anybody, despite numerous adaptations of the work being made. > > Currently in the US copyright is life of author + 70 years. Can I insert terms in my will that say my heirs may not pursue any remedies for copyright violations before the 70 years is up and would that clause be legally enforceable? Perhaps you could will your work to a body that is dedicated to not asserting copyrights; of course, they could reverse course or be subject to a hostile takeover, but odds are a public group with a mission is more reliable. I’ve often wondered - my dad had written a large number of scientific papers over his lifetime. He never explicitly mentioned copyright in his will, but I assume that right was to be split 3 ways as was the rest of his estate. So perhaps you could will a number of different people to have equal shares of the copyright, thus ensuring that unless they all agree (or sell out) nothing will happen. Or… i wonder what would happen if you willed the rights to the government? ---
**Author:** ![Steven\_G](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steven_g/32/5080_2.png) [@Steven\_G](https://boards.straightdope.com/u/Steven_G)\ **Post date:** [May 18, 2022, 8:41am UTC](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484/60 "2022-05-18T08:41:12Z")
> [@bump](#): > > Same thing for Burgundy (in fact, Chablis is just north of the Burgundy wine region) Sidetrack nitpick: Chablis is part (sub-region) of the Burgundy wine region (Bourgogne). [Previous page](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484.md?page=2) [Next page](https://boards.straightdope.com/t/when-was-the-last-time-a-product-lost-trademark-protection-after-its-name-became-genericised/964484.md?page=4)