If you were a Band-Aid brand adhesive bandage, and you were cut, would you protect yourself?
With that intro, let’s turn another page to the Genericide Watch category, here at DuetsBlog:
In focusing attention on the first item in the list shown above, to the extent Johnson & Johnson were to promote “protective surgical dressing in the form of a bandage” as the generic product name or category of the goods (the generic name listed in the USPTO record), it might be understandable that others generically and mistakenly call them “Band-Aids” — for example, as captured most recently on this hotel’s listing of complementary commodities.
It would be kind of like using the phrase “boots equipped with longitudinally aligned rollers used for skating and skiing,” instead of the more consumer-friendly and truncated “inline skates.” Yes, we’re talking again about how the Rollerblade brand may have found itself on the watch list too.
But what if you do things right, the brand does the best it can to protect itself from the small, gradual and persistent cuts that can lead to a complete loss of exclusive trademark rights? It appears Johnson & Johnson is focused on the risk, attempting to influence consumer understanding of the brand name by even placing the all-important word “brand” into the generic product description on packaging for Band-Aid branded products and elsewhere:
The brand also promotes use of the even more truncated generic reference “bandages” when touting itself as America’s #1 Bandage Brand.
Now, for all I know, the front desk at the hotel where I recently stayed might have sent up a few Band-Aid brand adhesive bandages, had I cut myself shaving, but I didn’t test the theory. And I’m not sure it would matter in the end, at least for the purposes of our discussion here, since widespread examples like the one depicted above tend to influence the meaning of the word to consumers and probably don’t bode well for the outcome of a Teflon-style trademark genericness survey.
In the end, the majority of relevant consumers’ understanding decides the question of whether a word functions primarily as a brand or primarily as a generic designation, remember my prior discussion about the Kleenex brand?
To our marketing colleagues who might find flattery and branding success in “owning or becoming the category name,” know that there is no ownership possible once this happens. Imagine a day when 3M could label its competing products “NEXCARE Brand Band-Aids” or Medline uses labeling reading: “CURAD Brand Band-Aids.” Would you really want to be the brand manager explaining — at the brand’s funeral — how this death to commodity status helps the brand at that point?
Perhaps this is the most vivid and compelling illustration of why some trademark types refer to the trademark genericide problem as “death by a thousand cuts.”