How do you prevent your trademark from becoming a generic (and unenforceable) trademark?  One short answer is to keep telling your customers that it is a trademark.

A trademark can often be a term or phrase that is used to identify a particular company or product.  Over time, if the general public associates that word/phrase with all products of a particular type and not the product from a particular company or source, the term can become generic and unenforceable. 

This is what happened to “escalator.”[1]  The term had originally been developed by a particular manufacturer as a term for their “moving staircase.”  Over a period of time, people began to call all moving staircases “escalators,” and the company ultimately lost its trademark.  The company had become a victim of its own success, and now a moving staircase can be called and marketed as an “escalator,” regardless of manufacturer.

So, how is it that Kleenex®, Band-Aid®, and others do not lose their trademark?  Most people, in common speech, refer to those products by referring to the popular brand name, regardless of what brand the product may actually be from.  One part of the downfall of the trademark for “escalator” was the company’s own use of the term generically.  The court found that Otis Elevator (the company that owned the “escalator” trademark) had used the term “escalator” generically in its own advertising, patent applications, and internal documents.

This is one reason why it is now common to see advertising refer to “Kleenex® brand facial tissues” or “Band-Aid® brand bandages.”  It is also common to hear similar phrases almost obnoxiously stated in the companies’ commercials.  It is almost always written out that way (or similarly) on the product packaging itself. 

By being very careful and persistent in specifying that a particular term (e.g. Kleenex®, Band-Aid®, etc.) is a trademark for a particular company’s product, and constantly reminding the public what that type of product is generically called (e.g. facial tissue, bandages, etc.), the companies are fighting a constant battle to ensure people associate the trademark with their product, and not generically for all products of that type from other companies.

If you have a trademark, call the experienced attorneys at Goosmann Law Firm, PLC, in our Omaha, Sioux City, or Sioux Falls offices to discuss how you can protect your trademark and prevent it from going the way of the escalator.


[1] Haughton Elevator Co. v. Seeberger (Otis Elevator Co. substituted), 85 U.S.P.Q. 80 (1950)

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