Generic Trademarks

Introduction:
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Generic Trademarks and Names
The idea for this blog began with a discovery. It turns out that the Crescent wrench is named after a brand. This was revealed to me when I found a hex key set laying on a counter of a workshop. I was taken back. I had thought quite naturally that Crescent was a type of wrench.
This term, “Crescent Wrench”, is a generic term for a type of adjustable wrench. (It is unlikely I will ever refer to it as such.)  After finding the set, I was curious about the effect of trademarks and specifically generic trademarks on a company. Generic, in trademark law, refers to the status of a word or symbol commonly used to describe an entire type of product or service rather than to distinguish one product or service from another¹. When a product becomes generic, it can no longer maintain its trademark status because it is indistinguishable from other products within its categorization. This is bad if you are in the business of protecting products that have become associated with your company through time and/or popularity. Everyday products that succumbed to genericide include the Escalator, Yo-Yo, Thermos, Asprin, and Trampoline, amongst many others.

Why are generic trademarks relevant to designers? Because designers and people, in general, are in the position to bestow a name to their crafts. At one point in time or another, you have been in a position to name something– maybe it’s a document, a work of art, a bridge or building, a car, or even a pet. When engaged in the naming process maybe you were at a loss as to where to begin. Of course, there is millennia of heritage for most named things– so there are guidelines. There are multiple domains to consider when naming. For instance, considerations must be made with respect to trademarks for products, with respect to bullies for children, and flexibility for part numbers for example. There are endless options, but some are better than others. In this post, the focus will be on names used for products– especially names that are suitable for trademarks which give the trademark owner exclusive rights to identify their goods or services.

The Types of Trademarks
There is essentially a 1 to 5 scale in increasing levels of protectability for trademarks. The table below helps sort through the types of trademarks and their usability. The table below has been retrieved from https://ir.law.fsu.edu/articles/213 (Table 1)². Linford did a nice job of providing a logical representation and classification of trademark categories. Note that the Inherent strength of the trademark lies in its ability to maintain legal standing when infringed on by competitive products.

The Function of Trademarks
When it comes to product names, you want them to be distinct and memorable. This is sometimes difficult to achieve because of the density of products on the market.  As it turns out, one of the core purposes of trademarks is to reduce consumer search costs. There is value in the consumer knowing what they want and where to look. “Under the economic rationale, the law protects a trademark as a unique source identifier so that consumers can more easily find a product from their preferred source.” ³  With brand recognition, the amount of effort to find a quality product is reduced with registered trademarks.

Another aspect of trademarks includes the moral perspective with a goal of “preventing injury to or misappropriation of mark owner goodwill and deception of consumers.” ⁴ I believe that this latter view is the popular understanding of trademarks.

Design Guidelines

Given that companies have some incentive to pursue registered trademarks, the following are useful guidelines to preserve trademarks that may be susceptible to becoming generic.