Keywords
Genericide, trademarks, intellectual property, brands, brand name
Abstract
Trademarks are all around us. It would be difficult to go an entire day without encountering a trademark—In fact, three-fourths of the words we use in our day-to-day conversations have been claimed as trademarks by various companies for various products. Often, we don’t even recognize all the marks we come across as trademarks. Words such as “aspirin,” “escalator,” and “trampoline” were all once trademarks. Over time, these words began to signify the product more than the producer; Because the marks could no longer identify the product’s source as trademarks are supposed to, the marks suffered “genericide” and were cancelled.
In the last few decades, there have been fewer trademark genericide cancellations. However, there has not been a corresponding decrease in the number of generic trademarks issued. Words such as “Band-Aid” and “Kleenex” are still protected trademarks even though there is widespread generic use of these terms by the public. This Note seeks to answer the following two questions:
(1) Why have the number of genericide findings become less frequent when the number of trade- marks that have become generic have not de- creased?
(2) Is the modern lack of genericide findings ben- eficial or harmful to society, given the costs and benefits that trademarks pose to consumers?
The simplified answer: Courts place heavy emphasis on the actions taken by a trademark owner to protect their mark, often punishing owners who fail to police improper uses of their marks with cancellation. Modern brands have learned from their predecessors and now often undertake trademark policing campaigns. The courts analyze trademarks that are generic from the beginning (or “generic ab initio”) and trademarks suffering genericide under different standards. They place a heightened importance on the actions a trademark owner takes to protect their trademark when analyzing whether a mark has suffered genericide. However, the societal harms and consumer costs posed by protecting generic ab initio terms and trademarks rendered generic over time are the same, so this different treatment is unwarranted.
Part I of this paper lays the foundations of the basics of trademark law, the policy reasons why generic terms are not protectable as trademarks, and the causes for genericide. Part II analyzes the trends in genericide over time and focuses particularly on the lack of genericide findings in recent decades. Part III seeks to provide an explanation for why genericide findings have become less prevalent by analyzing current scholars’ theories and creating a competing thesis that answers the question, ‘where did all the genericide cases go?’ Lastly, Part IV explores the policy implications for allowing trademarks that have become generic through genericide but not allowing trademarks that are generic ab initio, and decides whether the concept of “trademark genericide” should be gone for good.
Recommended Citation
Daniela Camacho,
Where Did All the Genericide Cases Go? And Should They be Gone for Good?,
36 Fordham Intell. Prop. Media & Ent. L.J. 233
(2025).
Available at: https://ir.lawnet.fordham.edu/iplj/vol36/iss1/4