Welcome to another edition of Genericide Watch, where we consider brands on the edge, working hard to maintain brand status and exclusive rights, while trying to avoid trademark genericide.
The primary meaning to the relevant public decides genericness, so trademark owners will try to influence how consumers understand the word, to maintain at
I’ll have to say, I really enjoyed Aaron Keller’s guest post from yesterday. In addition to the valuable insights he provided, it got me thinking about some perhaps unrelated, but parallel topics of likely interest to legal and marketing types.
Aaron wrote about the importance of a brand being honest with itself and others. He expressed the
Last September, in my blog post entitled "What Does Trademarked Mean to You?," I wrote:
More than a few trademark types cringe when their clients or others say things like "let’s trademark it," "they didn’t trademark their logo," or "we don’t want to trademark this name," and, when they ask questions like "is
Trademark lawyers need to face the facts. Despite decades of ardent counseling to the contrary, business executives and marketers are not only testing the waters with the treatment of their most valuable brands as verbs, in some cases, they are diving in head first, committing substantial resources and effort toward the clearly stated goal of "verbing up" and having their brands used as
by James Mahoney, Creative director/writer at Razor’s Edge Communications
Okay, so I’ve read a lot of whining and agita about how marketers continually drive trademark attorneys to distraction with un-trademarkable names. And how advertisers drive those same attorneys to that same distraction with potential trademark infringements.
It’s time to let you in on a dirty little secret: we don’t care about trademark stuff. At least not a lot of the time.
Now before you break out the smelling salts, or the torts (aren’t they little tasty cakes, by the way?) or something to stop your palpitating hearts, let me explain a little further.
For big stuff, like our own trademarks or ones we think will really get us into trouble if we violate, then we do pay attention and we do care. Ditto for new things we come up with that we think will have some durability. That’s a key distinction here, folks: things we think will have some durability. Relatively speaking, there aren’t many of them—product names, for example, deserve attention.
For everything else we do, we pretty much know that the Smithsonian isn’t going to be calling us to enshrine the original. We’re also pretty sure that most of the stuff we come up with will live slightly longer than a tsetse fly only if we’re lucky.
That’s why we’re so cavalier about trademarks. Other than observing the big-picture rules (most of the time), we hit the threshold of diminishing return on trademark-related effort very quickly. It’s just not that valuable a use of our time.
Continue Reading Why Marketers Don’t Give Two Hoots about Trademark Concerns‚Ñ¢
More than a few trademark types cringe when their clients or others say things like “let’s trademark it,” “they didn’t trademark their logo,” or “we don’t want to trademark this name,” and, when they ask questions like “is it trademarked?” or “is that trademarked software?” or “did we ever trademark our logo?” or “should we be trademarking this packaging?”
Indeed, some have written: “’Trademark’ is not a verb. There is no such thing as ‘trademarking’ a word or phrase.” Similar views are expressed here, here, and here.
Perhaps any cringing may result from the fact that the Lanham Act — the federal trademark statute — defines the word “trademark” as a noun, not a verb or adjective:
The term “trademark” includes any word, name, symbol, or device, or any combination thereof —
(1) used by a person, or
(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,
to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.
Section 45 of Lanham Act, 15 U.S.C. 1127.
Turns out though, the words “trademark,” “trademarked,” and “trademarking,” are recognized words with established verb meanings that have formed part of the English language: “(1) To label (a product) with proprietary identification; and (2) to register (something) as a trademark.” Moreover, the word “trademarked” has an established adjective meaning too: “labeled with proprietary (and legally registered) identification guaranteeing exclusive use; ‘trademarked goods’“.
From my perspective, there is no need for cringing or even correction, just further inquiry into how the words “trademark,” “trademarked,” and “trademarking” are being used.
There is a growing interest and, quite frankly, a dogged persistence among branding professionals to select brand names that have the ability and potential to be “verbed.” This makes trademark attorney types nervous and those of the “Dr. No” variety actually become unglued.
So, why the emphasis or fascination with verbs anyway? The answer apparently can be found in the definition of a verb: “A verb is a doing word (helping, grabbing).” This feature is appealing to marketers. In addition, some argue that “verbing” a brand extends its reach through effective “word of mouth branding.” Some feel so strongly about the marketing benefit they argue that “having the public utter your company name as a verb is like going to heaven without the inconvenience of dying. Getting ‘verbed’ is the ultimate accomplishment for any brand — the marketer’s Shangri-la.”
As marketing maven Seth Godin argued as early as 2005: “Nouns just sit there, inanimate lumps. Verbs are about wants and desires and wishes.” Given that limited binary choice, David Cameron’s recent and thoughtful “Brandverbing Brands” post on his OnBrands Blog, asks a reasonable question: “Wouldn’t you rather have your brand in the latter category?”
I’m wondering and you might be wondering too, what happened to door number three? We’ll get to that, patience.
Continue Reading Just Verb It? A Legal Perspective on Using Brands As Verbs: Part I