Losing a trademark challenge is bad news, right? It’s costly, it’s embarrassing, and it can damage a brand’s reputation.

And yet in one well-known instance, losing a trademark challenge didn’t hurt a brand at all. In fact, it ensured the brand’s immortality.

The product name I’m thinking of existed for just three years in the 1990s before the death-dealing trademark challenge. The company name survived in slightly altered form; the product name was replaced by a series of successor names.

Now, more than eleven years after that legal defeat, the original product name is still used, erroneously but ubiquitously, to describe an entire class of products—products that themselves exist mostly as fading memories.

What’s the product name?

I’ll give you one more hint: it’s a technology brand.

Answer after the jump.


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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?


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