Episode 10 of Trademark Talk with Erin is now out on Youtube! We have previously discussed inherently distinctive marks and non inherently distinctive marks such as descriptive marks. In this week’s blog post, we will be discussing generic marks.
What is a Generic Mark
A generic mark can be thought of as a word. label, or other indicia that describes a class of goods. Think of the words cola or fruit. Cola describes an entire category of drinks while fruit describes a class of edible plants.
Can Generic Marks Ever be Trademarked?
Unlike inherently distinctive marks and descriptive marks that attain secondary meaning, generic marks usually cannot obtain trademark protection. Allowing one party to have exclusive rights to a word or label that refers to an entire class of goods would put others in the same market at a great disadvantage. For example, if one party has the exclusive right to use the word “cola” in association with soft drinks, then how would their competitors describe their drinks? The competitors who produce colas would have to find different ways to describe their cola products, which would definitely not be easy.
How can you Determine Whether a Mark is Generic?
The Trademark Manual for Examining Procedure states that a “two-part inquiry is used to determine whether a designation is generic:
- (1) What is the genus of goods or services at issue?
- (2) Does the relevant public understand the designation primarily to refer to that genus of goods or services?”
Trademarks can Become Generic
Trademarks that were once considered inherently distinctive may become generic. Think of asprin and xerox, these marks were once considered fanciful marks. But consumers begin to associate these marks with a certain category of goods rather than the source itself.
What are your thoughts on generic marks? Leave a comment below to let us know what you think!
Watch Episode 10 of Trademark Talk of Erin right here!
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Disclaimer: This article is not legal advice. It is only for educational or entertainment purposes only. Please do not use the article or contents of the article without permission. For legal advice and questions, please contact registered Patent Attorney Vincent LoTempio.