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.

  • Jack Cuffari

    Steve:
    Great series!
    You know my contention: language is a living, dynamic force that will evolve despite all good efforts to govern its use. Marketers may want to force their brand nickname or verb form onto the public – it’ll either take or not. It will happen if the brand makes enough of a difference to consumers that they care enough to “adopt” it into their world, rendering it worthy of a language modification/ adoption. This is when fierce brand loyalty evolves into a fondness that facilitates abbreviation and verbing.
    Example 2: if they are heavy-handed, patient and ubiquitous enough to wear us all down (“Sunny Delight = Sunny D+” took about a decade for people to actually use.)
    All efforts to lock down usage may prevent marketing communications from utilizing brandverbing in messaging, but the consumers will do what they will. And while fears of a brand becoming generic are rife, it’s a problem that most marketers would love to have! It merely means that they will have to allocate resources to re-energize and re-imagine the brand when its lifecycle comes around.

  • This is a good topic. I have worked in branding around the world. In the UK “to Hoover” is to vacuum, based on a well-marketed vacuum cleaner in the ’50’s/’60’s. Today, worldwide, “to Google” is to search online. From a language and grammar standpoint, creating a verb from a brand is one thing but for years BandAids, Kleenex, Xeroxes, Levis and so forth have been generic stand-in /popular nouns for the kinds of products their companies have created. I don’t think that any of this degrades the inherent value of the brands themselves, although it ratchets up the need to continue to invest in the essential brand and of course there is a lot of legal wrangling to do but the brand visibility is pretty tangible.

  • I spent 25+ years on one side of this argument and now find myself on the other side. For 25+ years I was marketing consumer products and would LOVE IT when consumers would “verb” my brands (e.g., I was behind the “OXYCUTE ‘EM” strategy on the Oxy acne product line). Yes, the trademark attorneys would warn me of potential trademark dilution, but frankly I was willing to accept that risk if it got me a bigger business. Now, as a professional name developer, I constantly warn clients of making the same mistake.
    The hard part about this debate is most marketers believe they can walk very close to the edge of the cliff without falling off, mainly because marketers generally believe they can control the situation. But in reality, control resides with consumers and how they use the trademark. It is indeed a “slippery slope”!

  • IMHO – only when presenting an example to an in-house audience about how NOT to use the company’s trademark. As in, “NEVER say ‘I’ll Xerox a copy for you.'”

  • I don’t think that brand owners would do so, but the general public often does.

  • Well, I googled that question ……
    Seriously, it is never appropriate. It is a step toward genericide and should be avoided at all costs. I have a vague recollection that Xerox ran an add campaign on this question many years ago.

  • I will be the general public: let’s Google it and see what pops up; please FedEx that package.
    Now, Stephen is simply asking: can’t an owner be a creative verber without committing genericide? I think it is a fair question. “Do you Yahoo” may not pass, but are we listening to the public?

  • The problem is, perhaps, that trademarks exist, or not, ultimately in the eye OF the public. That’s why trademarks go generic. Words like “aspirin” were used by the public as the stand-in for the item itself, and when that happened, not all the king’s horses nor all the king’s men can haul that word out of the generic pool. Given this power of the public, when a company uses a trademark in other than a safe grammatical trademark sense, the company is actually inviting the public to adopt a use of the trademark that can lead to the mark becoming generic.

  • Bodoor Bokhamsin

    It is agreeable that many brands now a days are misinterpreting the methods of marketing. Especially branding and its trade mark represents the personality of the brand, if it is misused then the status will collapse.
    Misinterpretation of language is a common thing, and if the brand is in verb form, then not allot of people will understand it , which means the message that were meant to be sent isn’t received to consumer ,which is bad side on the brand reputation and its success in the future.

  • Thank you Stephen for such an interesting question: I am almost sure that all will opine that it is unhealthy to use a brand as a verb: the brand owners might end up visiting their brand at the brands graveyard!
    But also like to say that this is not the case the world over; in many countries, Kleenex, ASPIRIN and FedEx enjoy full protection and the outcome is, to the best of my info, very positive for the owners of said marks.

  • Thank you Stephen. Great series. I have forwarded the links to several clients and branding groups for consideration and discussion.
    As Paul Simon sings “slip sliding away…”

  • Stephen, I think the coming together of marketers and trademark lawyers will never happen over this issue. One seeks to do whatever is necessary to sell the brand, even if it weakens the wordmark in the long term. The other should be interested in protecting the wordmark at all costs. I don’t see any agreement except to sacrifice trademark integrity for marketing success. Can a brand that isn’t “verbed” be as successful as a brand that is? Mercedes Benz never was “Benzed” or “Benzing” and it did OK. Would it do better if it did?

  • Robert Cumming

    The whole issue of brand protection and genericity is important because a brand’s value affects its owner’s financial position. IP law, sine qua non, is designed to protect investment; investment made creatively as well as financially.
    A weak brand will accordingly have a lower value and thus generate less profit and have less licensing and security leverage potential. During corporate IP valuation the genericity of the brand will be taken into account. A mark which guarantees the origin of the goods or services will have a higher respective valuation than a brand which lies on the threshold of becoming generic.
    Once a brand reaches this threshold, marketing focus must shift to education of its ownership rather than rudimentary saturation and ubiquity. Failure to observe this versatile and polarised tactic will expose the brand to genericity, severely diminishing the strength and thus the value of the brand. In turn the leverage potential and profits will diminish.
    The most successful businesses are accordingly aware that it is in the interests of all stakeholders in the company: marketers; employees; financiers; and clients, that they are aware of the issue and the important shift of emphasis once the threshold is reached.
    The best approach to adopt will be relative to the market position of the business which owns the brand as alluded to by Mr Aaron Keller, Just Verb It? Part II, 18 June 2009.