–Sharon Armstrong, Attorney
I am currently in my home state of California, a place known to some as “the land of fruits and nuts.” (Although, “the Left Coast” is my favorite of these playfully derisive names for California.)
California is indeed the fruit basket of the United States, producing 51% of the nation’s fruit. And amongst the growing and harvesting and selling of fruit, California farmers are busy creating the next generation of fruit hybrids among some of the state’s largest crops.
The creation of new fruit varieties is interesting stuff, but a recent article in the Los Angeles Times addressed an ancillary concern about the results: creating new fruits “opens up a promising range of possibilities for growers and consumers, but what to call the resulting fruits? No one really knows.” Would it surprise you to know that Pluot is a registered trademark of XX for a hybrid of plum and apricot fruit?
This issue is indicative of a larger branding problem that many innovators and inventors of cutting-edge technology face – how to choose and publicize a protectable brand name for their technology while also presenting enough information to the public to communicate what the new technology actually is or does. Although descriptive marks are tempting to use, due to their very descriptive nature, use of such marks is generally ill-advised. At the same time, the use of even arbitrary and fanciful marks can backfire. Remember Xerox, Yo-Yo, and Aspirin?
There is no easy solution, but some of the best weapons in this situation include clear-cut and consistent trademark use guidelines (conduct a search for any popular software program, such as Adobe®, and you’ll see what I mean) and a hawk-like enforcement program to ensure that third-parties use the mark as an adjective for the new technology, and not as a noun.