Why trademark protection
is critical to brand survival
Today, a little discussion about brand names and trade marks. Lets start by watching this cute TV advertisement. While doing so, look for something that doesnt quite feel natural.
Go ahead and watch Ill wait right here.
Okay. The commercial is cute enough. Its clear theyre trying to replicate the charm of those timeless Mr Christie, you make good cookies commercials.
But there is jarring problem, an awkward speed bump that wrecks the contrived spontaneity of this ad. Did you catch it?
Its the addition of the word brand after every Band-Aid reference. How many children do you know who use the word brand in everyday conversation or in song, for that matter? It just doesnt ring true.
Can you imagine, Mr. Christie brand, you make good cookies?
This is not an isolated incident. And when it comes to brand names and trademarks, there is such thing as being too successful.
When I worked at The Newfoundland Herald in the mid-1980s, I received a letter from a legal firm on behalf of the manufacturer of Thermos bottles.
Thank you for referencing our product in a recent article, the letter went, to paraphrase from memory. Please note, however, that Thermos is a registered trademark and any future references should include the trademark registered symbol (r), followed by the word brand. Example: Thermos(r) brand.
Well, I laughed, balled up the letter and tossed it into the trash. Didnt the good folks at Thermos(r) brand have better things to do than read every word in a little-known magazine on the eastern edge of North America?
Several months later, I received another legal letter, advising us that our use of the word ski-doo was incorrect; that it should receive the same Ski-Doo(r) brand treatment.
The nerve! You give these companies a reference in a story effectively free advertising and they complain about it!
However, my views on this matter have softened with time and experience. I realize now that these corporations were right to be concerned about widespread use of their brand names.
That goes against the grain, I know. Can a company name become too widely known?
In fact, it can. And the results can be disastrous.
Quickly: When you hear the words flying disc, what comes to mind?
Frisbee, of course. As in, Lets play frisbee for a while. But chances are, the disc you pull from the garage is a generic product, not the actual branded item made by Wham-O. Even though we call it a Frisbee, we dont make the distinction in what we actually use. Every flying disc is a Frisbee. Clearly, this can be disastrous for the trademark holder, who loses sales to the generic brands.
This legally recognized phenomenon is known as genercized trademarks.
A trademark typically becomes genericized when the products or services with which it is associated have acquired substantial market dominance or mind share, according to an entry in Wickipedia. The term is legally significant in that unless a company works sufficiently to prevent such broad use of its trademark, its intellectual property rights in the trademark may be lost.
The article gives several examples of well-known products that have lost their legal protection in certain parts of the world because their trademarks became the generic, colloquially-known identifier of the product, including Q-Tip, Hoover, Kleenex and even Coke.
Some brands have been overtaken by their own success right here in North America. We know of kerosene and escalator as generic nouns, but they were initially trademarks (again according to Wickipedia). The escalator name was lost by the Otis Elevator company in 1950 in a ground-breaking case that offered important lessons to all trademark holders. (Interestingly, the word escalate is a derivative of escalator not the other way around.)
Another excellent example is Band-Ad, definitely a victim of its own success. When we ask for a band-aid, we are not asking for that brand we want a bandage. Its even become part of common language as a band-aid solution.
So when you see those kids singing about Band-Aid brand, try to ignore the awkwardness and understand that the advertiser is engaged in a high stakes and possibly futile battle to protect the integrity of its trademark.