Welcome to another edition of Genericide Watch, where we consider brands on the edge, working hard to maintain brand status and exclusive rights, while trying to avoid trademark genericide.

The primary meaning to the relevant public decides genericness, so trademark owners will try to influence how consumers understand the word, to maintain at

Thumbnail for version as of 15:21, 6 September 2009           Thumbnail for version as of 14:28, 28 October 2007  Thumbnail for version as of 05:55, 3 December 2007

More than a few trademark types cringe when their clients or others say things like “let’s trademark it,” “they didn’t trademark their logo,” or “we don’t want to trademark this name,” and, when they ask questions like “is it trademarked?” or “is that trademarked software?” or “did we ever trademark our logo?” or “should we be trademarking this packaging?”

Indeed, some have written: “’Trademark’ is not a verb. There is no such thing as ‘trademarking’ a word or phrase.” Similar views are expressed here, here, and here.

Perhaps any cringing may result from the fact that the Lanham Act — the federal trademark statute — defines the word “trademark” as a noun, not a verb or adjective:

The term “trademark” includes any word, name, symbol, or device, or any combination thereof —

(1) used by a person, or

(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,

to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

Section 45 of Lanham Act, 15 U.S.C. 1127.

Turns out though, the wordstrademark,” “trademarked,” and “trademarking,” are recognized words with established verb meanings that have formed part of the English language: “(1) To label (a product) with proprietary identification; and (2) to register (something) as a trademark.” Moreover, the word “trademarked” has an established adjective meaning too: “labeled with proprietary (and legally registered) identification guaranteeing exclusive use; ‘trademarked goods’“.

From my perspective, there is no need for cringing or even correction, just further inquiry into how the words “trademark,” “trademarked,” and “trademarking” are being used.Continue Reading What Does “Trademarked” Mean to You?

There is a growing interest and, quite frankly, a dogged persistence among branding professionals to select brand names that have the ability and potential to be “verbed.” This makes trademark attorney types nervous and those of the “Dr. No” variety actually become unglued.

So, why the emphasis or fascination with verbs anyway? The answer apparently can be found in the definition of a verb: “A verb is a doing word (helping, grabbing).” This feature is appealing to marketers. In addition, some argue that “verbing” a brand extends its reach through effective “word of mouth branding.” Some feel so strongly about the marketing benefit they argue that “having the public utter your company name as a verb is like going to heaven without the inconvenience of dying. Getting ‘verbed’ is the ultimate accomplishment for any brand — the marketer’s Shangri-la.”

As marketing maven Seth Godin argued as early as 2005: “Nouns just sit there, inanimate lumps. Verbs are about wants and desires and wishes.” Given that limited binary choice, David Cameron’s recent and thoughtful “Brandverbing Brands” post on his OnBrands Blog, asks a reasonable question: “Wouldn’t you rather have your brand in the latter category?”

I’m wondering and you might be wondering too, what happened to door number three? We’ll get to that, patience.Continue Reading Just Verb It? A Legal Perspective on Using Brands As Verbs: Part I