–Sharon Armstrong, Attorney

Every so often I come across a turn of phrase that just makes me smile. The online news magazine Slate did so with its slide show called “There Once Was a Man Named Leotard,” which is devoted to how certain people – generally well-known inventors – have names that have become nouns. This charming selection is culled from a longer slide show available at Life.com, which includes historical tidbits about fellows including the Jacuzzi brothers, Etienne Silhouette, John Montagu (the Fourth Earl of Sandwich), Frank Zamboni, Nikolai Tesla, and my personal favorite, Jules Leotard. Chances are, you can guess which things or objects are we encounter in regular life that bears these mens’ names.

Of course, there is a trademark lesson here. While John Montagu, being a nobleman and all, probably wasn’t interested in monetizing his system of placing meat and vegetables between pieces of bread to create a tasty and portable meal option, and while the unit of measurement that bears Nikolai Tesla’s name is neither a good nor a service, only some of the other inventors named in the slide shows have obtained trademark protection for their revolutionary goods, while many of the others have, perhaps unwittingly, allowed their names to become the generic for the goods at issue. One of the basic tenets of trademark usage is that a trademark should be used as an adjective to describe a noun – the generic term for the goods or services at issue. Trademarks should always be used as names for brands, not names for things. The cost of using a trademark as a noun, generically, is considerable – generic terms simply aren’t capable of obtaining trademark protection, as generic terms must be free for all to use.

For example, both Zamboni and Jacuzzi are registered trademarks for, among other goods, ice-resurfacing machines and whirlpool baths, respectively. This means that, when considering resurfacing the pond in your backyard, you should look into a Zamboni® ice-resurfacing machine. And when looking to re-outfit your bathroom, consider a Jacuzzi®-brand whirlpool bath.

Leotards, on the other hand, are just leotards.