In the world of branding and trademark law, genericness is an issue many businesses face when they attempt to protect their intellectual property. Tackling genericness claims can be accomplished with Keegan & Donato Consulting consumer surveys.
Our capabilities include state-of-the-art survey designs that are probative of the relevant issues in each case. In addition to designing and executing consumer surveys that stand up to the scrutiny of the Courts, we can be engaged to critique consumer surveys submitted by opposing experts. We have also reviewed and rebutted many surveys conducted in conjunction with trademark litigation.
A trademark’s most important job is to identify a product or service’s origin (producer) and protect consumers from confusion and deception.
Generic marks are common dictionary words and are the weakest types of trademarks. They are ineligible for protection because they are not distinctive and do not identify the source of the products or services or distinguish them from others.
Examples of Generic Marks
Zipper – The B.F. Goodrich Company originally trademarked “zipper” in 1925 for boots that used a new slide fastener technology. It quickly became widely used for all slide fasteners and was deemed generic by a court in 1940.
Yo-yo – Originally a trademark of the Duncan Yo-Yo Company, “yo-yo” was their toy that consisted of a pair of disks connected by an axle, with a string tied to the axle. In 1965, the U.S. Court of Appeals ruled that the trademark had become generic and anyone could use the term to describe any spinning top.
Dumpster – Dumpster was once a trademarked term that dates back to 1936 when the Dempster Brothers developed a system of loading garbage containers onto garbage trucks. They called it a “dumpster” to blend the company name with the trash container. Since the 1980s, the term has been considered generic and can no longer function as a trademark.
Can You Combat Genericness Claims?
Companies that have invested significant resources into building a brand around a specific term or phrase find genericness claims very problematic. However, one effective method of combatting such claims is through consumer surveys.
Surveys can gather evidence of how the public perceives a particular term or phrase in relation to a specific product or service. The survey can ask whether consumers associate the term with a specific brand or use the word to describe a broad category of products or services.
By providing concrete evidence of how consumers perceive a particular term, consumer surveys can effectively protect a brand’s trademark rights.
Tackling genericness claims with consumer surveys from Keegan & Donato Consulting can help determine whether the public perceives an at-issue mark as a common name or design. Learn more about the critical components of a genericness survey from our expert team. Contact us at (914) 967-9421 to find out how we can help.