genericized trademark

A generic trademark, also known as a genericized trademark or proprietary eponym, is a trademark or brand name that, because of its popularity or significance, has become the generic term for, or synonymous with, a general class of products or services, usually against the intentions of the trademark's owner.

A trademark is said to become ''genericized''—or, informally, to have suffered ''genericide''—when it begins as a distinctive product identifier but changes in meaning to become generic. This typically happens when the products or services which the trademark is associated with have acquired substantial market dominance or mind share, such that the primary meaning of the genericized trademark becomes the product or service itself rather than an indication of source for the product or service. A trademark thus popularised has its legal protection at risk in some countries such as the United States and United Kingdom, as its intellectual property rights in the trademark may be lost and competitors enabled to use the genericized trademark to describe their similar products, unless the owner of an affected trademark works sufficiently to correct and prevent such broad use.

In subpopulations

Genericization or "loss of secondary meaning" may be prevalent among either the general population or just a subpopulation, such as among people who work in a particular industry. Some examples of the latter type from the vocabulary of physicians include the names Luer-Lok (Luer lock), Phoroptor (phoropter), and Port-a-Cath (portacath), which have genericized mind share (among physicians) because no alternative generic name for the idea is widely used, and as a result, users may not realize that the term is a brand name rather than a medical eponym or generic-etymology term.

Most often, genericization occurs because of heavy advertising that fails to provide an alternative generic name or that uses the trademark in similar fashion to generic terms. Thus, when the Otis Elevator Company advertised that it offered "the latest in elevator and escalator design," it was using the well-known generic term "elevator" and Otis' trademark "Escalator" for moving staircases in the same way. The United States Patent and Trademark Office and domestic courts concluded that, if Otis used their trademark in that generic way, they could not stop Westinghouse from calling its moving staircases "escalators", and a valuable trademark was lost through ''genericization''.

In pharmaceuticals

The pharmaceutical industry affords some protection from genericization of trade names with the modern practice of assigning a nonproprietary name for a drug based upon chemical structure. Brand-name drugs have well-known nonproprietary names from the beginning of their commercial existence, even while still under patent, preventing the aforementioned problem of "no alternative generic name for the idea readily coming to mind". For example, even when Abilify was new, its nonproprietary name, aripiprazole, was well documented. Another example is warfarin, which was known as an ingredient in rat poison before it was approved for human use under the brand name of Coumadin.

Examples of genericization before the modern system of generic drugs include aspirin, introduced to the market in 1897, and heroin, introduced in 1898. Both were originally trademarks of Bayer AG. However, U.S. court rulings in 1918 and 1921 found the terms to be genericized, stating the company's failure to reinforce the brand's connection with their product as the reason.

A different sense of the word ''genericized'' in the pharmaceutical industry refers to products whose patent protection has expired. For example, Lipitor was genericized in the U.S. when the first competing generic version was approved by the FDA in November 2011. In this same context, the term ''genericization'' refers to the process of a brand drug losing market exclusivity to generics.

Trademark erosion

Trademark erosion, or genericization, is a special case of antonomasia related to trademarks. It happens when a trademark becomes so common that it starts being used as a common name ''and'' the original company has failed to prevent such use. Once it has become an appellative, the word cannot be registered any more; this is why companies try hard not to let their trademark become too common, a phenomenon that could otherwise be considered a successful move since it would mean that the company gained an exceptional recognition. An example of trademark erosion is the verb “to hoover” (used with the meaning of “vacuum cleaning”), originated from the Hoover company brand name.

Nintendo is an example of a brand that successfully fought trademark erosion, having managed to replace excessive use of its name by the then-neologism game console.

Legal concepts

Whether or not a mark is popularly identified as genericized, the owner of the mark may still be able to enforce the proprietary