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“Pass me a KLEENEX please.”  “Would you like a POPSICLE?”

Pretty harmless requests, right? Not to the owners of these brands.  The more consumers use these (and other) famous trademarks as nouns instead of adjectives, the greater the risk that the trademarks will be genericized.  This is what occurs when a trademark owner loses their trademark rights as a result of the mark becoming a generic term.  As a result, the trademark owners no longer have exclusive rights to their brand.

This is what has happened to some famous marks such as “escalator”, “zipper” and “trampoline”.

The first step to protecting your brand against genericide is to ensure that your marketing team is using the trademark properly in your marketing materials:

  1. Ensure that the trademark is distinguished.  If pending, use the TM symbol.  If registered, use the ® symbol.  Even consider placing the mark on a separate line, or in a different font/size/colour.
  2. Trademarks cannot become plural (ie. KLEENEXs).
  3. A trademark is not a verb, noun or gerund.  For example, do not use the following:
    • I will GOOGLE that
      • Instead, use “I will do a GOOGLE search”.

And for the average Canadian consumer, please consider following the above as well.  It may be too late for “zipper”, but let’s try and keep KLEENEX around a little longer.

If you want to learn more about steps to take to protect your brand name, contact our Intellectual Property team.

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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