Can’t tell you how many times folks have asked, “Is that one of those fit bits?” “Nope,” I sometimes say lazily and admittedly without trademark rigor, “it’s a Jawbone, but same idea.”
Lazily because I think I’m tired of reminding folks that fitbit is actually a brand, not a generic, category name for a type of health tracking device, and Jawbone is a major competitor of Fitbit:
My Jawbone is pretty amazing. I’m probably not using all the bells and whistles available, but it automatically tracks my sleep and steps, and I’m easily able to record what I eat and do.
Meanwhile, back to the trademark point, my absence of trademark rigor might also be explained by my serious question of what the appropriate generic term is for this category of products.
Yet, only steps ahead, as we passed Brookstone, it became apparent that Fitbit doesn’t appear to fully embrace the “fitness tracker” term, opting more broadly for simply “trackers”:
I’m doubting the USPTO will ever allow the term “trackers” as an appropriate generic term, it’s simply too indefinite. It does, however, allow “wearable activity trackers” and that category name was added to the USPTO’s Trademark ID Manual months ago in January 2016.
“Pedometers” has been around as a pre-approved goods identification within the USPTO’s Trademark ID Manual since April 1991, but that description, while accurate as to one feature, it seems under-inclusive overall.
“Wearable activity trackers” seems like a good one, but it hasn’t gotten a lot of traction yet, as it appears there are only 244 pending trademark applications using this term in the description of goods field, including this odd one for GARMARVR, filed by a Chinese company.
Hello, Garmin — another heavy-hitter in the “fitness tracker” or “wearable activity tracker” category — you might want to take note of that recently filed trademark application.
A review of Fitbit’s description of goods in its first trademark registration at the USPTO isn’t much help either, too much of a mouthful, even with the bracketed deletions from the original ID:
“Multifunctional electronic devices for displaying, measuring, and uploading to the Internet information including time, date, [ body and heart rates, global positioning, direction, ] distance, altitude, speed, steps taken [, ] * and * calories burned [, navigational information, weather information, the temperature, wind speed, and the declination of body and heart rates, altitude and speed ].”
Having said that, Fitbit’s most recent application includes a nice attempt at a bite size term capable of being embraced by the general public for this category of goods — “Personal fitness trackers” — but, the Examining Attorney contends even that is too indefinite, so stay tuned.
This whole discussion reminds me of a few points we’ve made multiple times here before, so let’s take a few more steps together down memory lane:
- When a new product category is being launched — as we learned from the Rollerblade example (taking an entire decade to come up with “in-line skates”) — creating a great brand name is obviously important, but it is just as important to also create a suitable generic category term for the public to embrace once inevitable competitors appear.
- When a brand’s visual identity utilizes and encourages an all lower case style and format, as fitbit does, it might find itself on our Genericide Watch some day.
What do you think? Is fitbit flirting with disaster by using its all lower case branding style?
Also, has it lost an early opportunity to donate a suitable generic category name to the generic public so it doesn’t have to relinquish its trademark for that same purpose?