Is there a danger that my trademark can become generic?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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Yes, there is a danger that a trademark can become generic. A trademark becomes generic when it loses its uniqueness. Generally, this means it is used so much in the everyday that it loses the special qualities that made if worthy of being a trademark in the first place. There is also legal significance and consequences when a trademark becomes generic.

How Trademarks Become Generic

When considering a trademark, the United States Patent and Trademark Office views its uniqueness along a scale. The scale ranges from strong to weak. Below are some of the terms used in it:

  • “Fanciful” – original and having little if any reference to the nature of the product or service
  • “Suggestive”- having primarily trademark significance but with suggestion as to nature of product
  • “Descriptive”- not just suggesting, but actually describing the product or service
  • “Merely descriptive”- having almost entirely reference to the product or service

Once a trademark gets into the area of being “merely descriptive,” it can be used to describe products similar to or even competing with the one trademarked. The owner runs the risk of the public using the trademark name to describe an entire class of products rather than his specific product.

When Trademarks Become Generic: Examples and Consequences

Some examples of items that were once trademarked, but have become generic are: cellophane, dry ice and email. At one point each of these referred to an individual product produced by one company rather than any similar product. Once this happens, it becomes difficult to maintain the trademark.

Advertising the product becomes difficult and the original company can lose sales and market share. It can be cancelled when a competitor starts an abandonment action. This is a lawsuit requiring that a trademark be cancelled because the original owner has not maintained exclusive use of the mark and has allowed it to become generic. The dangers of becoming “genericized” are good cause for a trademark owner to monitor competitors and take action when noticing unauthorized use. An intellectual property attorney can help you take such action.

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