The loss of a trademark is a blow to companies that incur costs to maintain the names of their products. Companies that fail to safeguard their trademarks fear that their product names might become generic, leading to exploitation by third parties. For instance, escalator, zipper, and Aspirin, were once trademarks that expressed particular brands, but they have nowadays taken the common language, or generic terms, as moving staircase, zippers, and pain reliever, respectfully. The “Google” trademark is probably one of the world’s most expensive trademarks, which has made the company to threaten its competitors, who claimed that the trademark has already become generic, and can be utilized by other parties without encountering legal consequences. Trademark rights are the company’s most precious asset, thus, companies must protect their trademarks to avoid experiencing genercide.
Defining the Legal Concept of “Genericide” In Its Relation to Trademark Law
Generic terms are common names that are used to identify products or services that do not portray definite source. The term “genericide” is coined from the word generic to mean the loss of trademark when the public categorizes the company’s trademark with other similar products (Hart, et al 51). When a company’s trademark is associated to a particular action that is not approved by the owning company, such trademark is deemed to become genericized. Genericide may occur if customers of a certain product link the trademark with the name of that product instead of perceiving it through its source (Ouellette 397). The term is at times utilized to express a process where the owner of a trademark inadvertently contributes in the obliteration of the uniqueness of the trademark. A generic term does not qualify to become a trademark as it signifies itself.
Trademark laws exist to preserve distinctive marks that distinguish a particular company’s products or services from other companies’ products in the same marketplace. Trademark rights can be lost when the firm’s trademark fails to act as an identifier of the company’s products or services. If consumers perceive the trademark as the product’s name as opposed to its exclusive source, the possibility of a trademark losing its distinctiveness is relatively high. In legal proceedings, the court investigates how the public perceives the company’s trademark, and whether customers understand the source of the brand in question. Some unscrupulous businesses can embrace the generic name and convince the intellectual property judges that they have the right to use the name due to its commonness. In this case, the original company feels the implication of genericide.
One of the companies that have strived to maintain their trademarks is Google. Google has become an international trademark due to its unique products and, in particular, its search engine. With its up-to-date technology, from Chrome to Gmail to Android, the company’s mission is to enable its customers to find any information with ease. By using Gmail, Google customers can share documents without necessarily coping. The company is assisting businesses to advertise, as well as improve their productivity both on and off the web. Thus, maintaining Google trademark is fundamental for the company’s survival in a competitive market.
Google has entered into legal proceedings with its opponents, who want to the word Google to be permitted in the public domain due to its widespread use. According to Google’s opponents, the “Google” trademark has become generic owing to the majority of people perceiving the word “google” as a verb that means to search on the internet (Goldman 1). As one of the most costly trademark globally, Google trademark has become a common name among the public, but the company still possess the right to defend it. The company’s trademark designates the Google search engine, in addition to using it as a verb to denote an act of searching through the internet, specifically the Google search engine.
Google does not want its trademark to be utilized as a common word to avoid losing the value and uniqueness of its brand. By allowing the term “to google” to appear in the English dictionary, the company would be sacrificing its value to its competitors, as everyone would be using the word as their own. A trademark does not become generic based on its frequent use (Miller 142). The case Elliot v. Google Inc. was an attempt to affirm the mark Google as generic. According to David Elliot, the plaintiff, the term Google had become generic, thus, Google Company had no right to restrict its domain name to be utilized by other parties (142). Allowing other search engines to utilize the term “to google” would amount to genericide.
Google has the capacity to defend its trademark from becoming a common term by exercising the legal acts. Even if the public utilizes the trademark as a verb while consumers relate the word with the company, Google trademark is still a protected brand (Miller 142). The court asserted that using a trademark as a verb is not an indication of becoming generic, since the mark is still capable of distinguishing the company’s product from other products. Generic terms can hardly be protected, as descriptive terms can only qualify for protection if they possess some distinctiveness that enables buyers to associate them with their unique sources (Ouellette 352-353).
As long as Google is capable of convincing dictionary authors to capitalize the first letter of its trademark, the company is safe from genericide. The company knew that its dominance as a search engine would have generated a risk to its trademark; hence, developing a manual on its trademark was a necessity. In addition, Google can safeguard its trademark by considering the following tips:
- It should avoid using its trademark to refer to its products, as doing so will mark the trademark become generic.
- If the trademark has to be used in a sentence, then the trademark should be utilized as an adjective.
- When used in a sentence, Google trademark should be distinguished from other words, by indicating it in capital letters, in bold face type, or in italics.
- The company should utilize suitable trademark designation to necessitate legal action in case of infringement.
- The company should an attempt to monitor third party usage of its trademark and take appropriate legal action to avoid losing the source identifier.
- The company should avoid situations where its trademark has to appear in a dictionary, as allowing such action amounts to genericide.
Google is likely to experience several implications if it allows its trademark to become generic. Generide can be undesirable for a company that has invested millions of money to create a brand, but realizes that other companies are using the same brand. Allowing other parties to use the company’s trademark makes the company loose in terms of popularity, as well as revenue. If Google allows other companies to make its name generic, the company will lose on its revenue, as well as its customer base due to loss of reputation on its trademark. In reality, Google may lose control over its name, and even the legal actions can never restrict third party developers from exploiting the name according to their preferences (Goldman 2).
Loss of a trademark creates a contradiction in business, as customers would no longer identify the appropriate source of their preferred brands. Although it is quite hard to quantify the amount of revenue that Google could lose if it allows its name to become generic, the company would be greatly concerned about its customers’ inability to distinguish the right search engine from numerous search engines that possess the same name. If Google permit its name to be used in common terms, it might experience what renowned brands, such as Aspirin, escalator, or thermos, underwent several years ago.
Companies should strive to safeguard their trademark to evade legal battles that intend to prove their names as generic. Google should ensure that its customers utilize its trademark properly, and that its misuse can only be unintentional. Companies can prevent their trademarks from losing their functions by permitting them to be utilized properly as adjectives, rather than as nouns or verbs (Amernick 120). Fortunately, the court has defended Google by asserting that the company still possesses the powers to maintain its trademark. The right to trademark remains as long as the company continues to utilize the trademark. The court ruling that using a trademark as a verb does not pose any danger to the trademark has helped other companies that face the situation similar to Google.
Amernick, Burton A. Patent Law for the Nonlawyer: A Guide for the Engineer, Technologist, and Manager. Boston, MA: Springer US, 2012. Internet resource.
Goldman, Eric. “Google Successfully Defends Its Most Valuable Asset In Court.” Forbes. Tech, Sep. 15, 2014. Web. 1 June 2016 http://www.forbes.com/sites/ericgoldman/2014/09/15/google-successfully-defends-its-most-valuable-asset-in-court/#7053e10d3f05
Halt, Gerald B., John C. Donch, Robert Fesnak, and Amber R. Stiles. Intellectual Property in Consumer Electronics, Software and Technology Startups. New York, NY: Springer, 2013.
Miller, Roger L. R. Business Law Today: Standard Edition: Text & Summarized Cases. Boston, MA: Cengage Learning, 2014. Print.
Ouellette, Lisa Larrimore. “The Google Shortcut to Trademark Law.”California Law Review 102 (2014): 351-408.