Although intellectual property lawyers of the Dr. No variety may not like to admit it — I submit that, not all slippery slopes are created equal. While some slippery slope cautions might prevent a few bumps and bruises in traveling along a particular path (e.g., the one on the left below), I suspect far fewer slippery slope cautions actually prevent life-ending falls from perilous cliffs (e.g., the one on the right below), yet other man-made slippery slopes specifically are designed for fun and enjoyment — not danger — and have generated enormous sales over the years (e.g., WHAM-O’s SLIP’N SLIDE brand products).
So, putting aside Professor Douglas Walton’s teaching that the slippery slope argument is "often treated as a fallacy," it is worth asking what brand of slippery slope most accurately represents the risk associated with marketers using their brands and trademarks as verbs?
As discussed in Part I of my Just Verb It? series, many marketers love the idea of having their brands embraced as verbs, but many trademark lawyers totally forbid any "brandverbing," i.e., "mis-using" brands (adjectives) as verbs: "Why? To prevent brand names and trademarks from becoming generic names and part of the public domain for anyone to freely use, even competitors."
No doubt, genericide — the ultimate fear of using brands as verbs — equals certain trademark death, a horrible result from both marketing and legal perspectives; but, I submit it doesn’t necessarily follow that brandverbing activities automatically result in trademark death or genericide. To be sure, far more than a single act of verbing a trademark or brand must occur before a majority of the relevant consuming public no longer sees the claimed trademark or brand as identifying and distinguishing certain products or services as coming from a single source. Given this, there must be an opportunity to engage in some thoughtful and creative level of brandverbing without committing trademark suicide, right?
Unlike the kind of trademark abandonment that automatically results from the single act of non-use of a trademark coupled with no intention at that time to resume use of the trademark, the kind of trademark abandonment that is also known as genericide, in contrast, results from a gradual change in the meaning of a trademark or brand to an unprotectable generic term. A change that shifts the meaning — understood by a majority of the relevant consuming public — from identifying, distinguishing and indicating a single source for a particular product or service to a designation that connotes no single source at all, but instead, an entire product or service category with multiple unrelated sources.
As discussed in Part II of my Just Verb It? series, significant companies like Microsoft, Culver’s Restaurants, and Yahoo! have all used at least some of their brands as verbs, so I asked "what do these companies know or at least believe that others on the ‘straight and narrow’ don’t know or at least believe?" Perhaps they appreciate that not all slippery slopes are created equal? On the other hand, Yahoo! appears to have erased the brandverbed Do You Yahoo!? bumper sticker that I highlighted was being sold on the Yahoo Company Store website only five weeks ago. Does this signal a desire by Yahoo! to rethink or attempt to erase its brandverbing history? If so, there is some more clean up or erasing needed as other brandverbed items remain for sale there, such as the Do You Yahoo!? pencil, selling for 85 cents, described this way: "Our signature slogan makes a great statement on the classic BIC® pencil." So, Yahoo!’s "signature slogan" consists of a brandverbed phrase. This shouldn’t result in trademark suicide, but we’ll see how long this item lasts.
The New York Times certainly considers the "verbing up" of brands to be a timely and hot topic, as evidenced in Noam Cohen’s July 18 article entitled "The Power of the Brand as Verb," where he reports: "It once would have been unthinkable for a company like Microsoft to encourage people to use its (Bing) brand name so cavalierly. Businesses feared that if their product name became a verb, then it would lose its individual identity." (My previous discussion of Bing, here).
Going forward, will companies like Tivo continue to utilize the slippery slope argument to forbid any amount of brandverbing? Or will they soften these kinds of black/white statements?: "Trademarks are never verbs. It is never permissible to use any of our trademarks as verbs." How about Palm? Adobe?
Given the apparent marketing and business value associated with having brands embraced as verbs, I submit that creative trademark types and marketers can and should work together to find ways of mitigating the extreme risk of trademark genericide without bowing to the slippery slope argument that forbids any brandverbing whatsoever.
Stay tuned for Part IV of the Just Verb It? series, and my concluding thoughts about how to avoid or mitigate the risk of trademark genericide without embracing the slippery slope and resorting to black and white prohibitions on any and all brandverbing activities.