Let’s dive right into the deep end, shall we kids? Like me, you may be wondering what does “genercide” mean? I had never heard this term before reading a Quartz at Work piece entitled Is Zoom on the road to genericide? Apparently I was out that day in marketing/advertising class because the term has been around for a while apparently. According to Cornell Law School the term is defined thusly:
“A process by which a trademark owner loses trademark rights because the trademark is used widely and indiscriminately to refer to a type of product or service. For example, escalator was originally a protected trademark used to designate the moving stairs manufactured by a specific company. Eventually, the word became synonymous with the very idea of moving stairs and thus lost its trademark protection.”
I have to admit I did not know that escalator was once a trademark, at least in the U.S., anyway. In fact, in researching this piece I came across other words/phrases that I never knew were at one time trademarked. Here’s a random sampling. See if you knew these were in fact trademarked yourself:
- ZIP Code (Do you know the word ZIP is actually an acronym? See below for what it stands for)
Velcro is actually still trademarked but that didn’t stop “lawyers” (they’re in fact actors) from making a hilarious, tongue-in-cheek (or is it?) video to help consumers when it comes to the right and wrong way to use the word “velcro.”
More Common Examples
There are many examples of brands that have hit a daily double of sorts reaching both ubiquitous stage as well as becoming synonymous with the product itself. NOTE: These are all still protected by trademark laws in the U.S.
Face it, we consumers buy band-aids, we don’t necessarily buy Band-Aids. And we love to relax in jacuzzis. Whether or not it’s a Jacuzzi is irrelevant.
The Doom of Zoom?
Two months before the Zoom road to genericide piece hit the digital streets, The National Law Review (NLR) published Is Zoom On The Verge Of Becoming A Generic Mark?
Building on what Cornell Law wrote, the NLR added:
“Under U.S. law, genericide is a form of abandonment. A mark will be deemed to be “abandoned” if: (1) its use has been discontinued for three years with intent not to resume such use; or (2) when the mark becomes the generic name for the goods or services on or in connection with which it is used.”
The NLR piece goes on to cite the case which saw the word aspirin become generic including part of the ruling from the presiding judge: “The single question, as I view it, in all these cases, is merely one of fact: What do the buyers understand by the word for whose use the parties are contending? If they understand by it only the kind of goods sold, them [sic], I take it, it makes no difference whatever what efforts the plaintiff has made to get them to understand more. He has failed, and he cannot say that, when the defendant uses the word, he is taking away customers who wanted to deal with him, however closely disguised he may be allowed to keep his identity.”
The above language eventually became the standard for determining whether a mark has become generic.
So what does this all mean for Zoom?
Well, it depends on who you listen to.
If you listen to the NLR it could spell trouble: “The critical question for Zoom will be whether the Zoom mark has become a mere common verb.” And the Quartz piece is even more ominous: “When a brand becomes so ubiquitous that it turns into a generic term for any type of similar product, it can lead to the loss of trademark value and hurt the ability of the brand’s owner to distinguish itself from the market.”
Not In Control
In 2003, in my hometown Philadelphia, a new stadium opened. Its name was/is Lincoln Financial Field. Almost immediately, however, locals started referring to it simple as “The Linc.” Well this did not sit well with the suits at Lincoln Financial. Oh hell no.
“We didn’t pay a boatload of cash to have our name on this stadium only to have people shorten to some slangy phrase like The Linc.” Note: This is not an actual quote, I made it up. But you can bet your sweet you-know-what something very similar was uttered in some boardroom.
Today, it’s known around the country, if not the world, as The Linc. From announcers to players to the rest of us, it is just The Linc.
The reason I bring this up is no matter how something reads on a legal filing i.e. a trademark, people, AKA consumers, AKA we humans, will decide how we want to refer to something, Not some judge. Not some lawyer. And surely not some executive.
So you can debate all you want if this is a good thing or not if Zoom joins the pantheon of brands that have “gone generic.”
Just remember, it doesn’t matter what we marketers/advertisers/brands/execs say.
It only matters what we consumers say.
The term ZIP is an acronym for Zone Improvement Plan. But you knew that already, right?