Oct 8, 2020
folder_opencategory: Law

The trademark is a common term that refers to a design, symbol or logo that is used by a company or other stakeholder for its property or products. It may also include the name of the company’s products that refer to the name of the company. The trademark is a sign that makes a product unique. Besides, the global use of that trademark may be used in order to track and utilize the needed service or product. However, some issues are always present within trademark wars, because many organizations usually try to violate the trademark law. Unfortunately, even greater damage might be caused by the popularity of the identical trademark, because it can become generic, i.e. be used as a general word to denote some product. The popularity of the trademark makes people utilize the word in its new sense by transferring the original names into words that might have nothing in common with the initial name. This essay highlights the importance to track all possible issues regarding trademark law and genericide as a possible threat by focusing on the cases of Mattel Inc vs 3894207 Canada Inc. and Elliot vs. Google Inc. as examples in order to broaden the understanding of the given topic.

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Since genericide might be a serious threat to companies, first it is important to investigate the trademark origin. The trademark power to protect itself might be defined by the case of Mattel Inc. vs. 3894207 Canada Inc. that was analyzed in details in class. Mattel Inc., which owned the Barbie trademark, tried to sue the restaurant service that was called Barbie’s. The court did not approve the case due to its inconsistency. There are many ways to solve the confusion in trademark laws that are highlighted by the local policies in every country. There are five factors that help courts all around the world to view their cases. “The inherent distinctiveness of trademarks or tradenames and the extent to which they have become known” is one of the five factors that spot frames of the trademark force. Each trademark has its origin and strong background, so the two previously mentioned trademarks were different in their utilization. Barbie trademark was used as a shortened form of “Barbara” and described the whole set of products known as Barbie, while Barbie’s was a barely known restaurant that was only locally recognized and promoted zero threat to the original trademark. “The length of time the trademarks or tradenames have been in use” is also important in regulating cases of trademark enforcements, because the one who invented the trademark first can claim rights, since his or her trademark will be classified as a stronger one. “The nature of the wares, services or business” can help courts to understand business perspective and divide the clientele. Barbie used an entirely different marketplace so that their clients could barely be confused with the usage of two different trademarks even on the local distribution of Barbie’s restaurant. “The nature of the trade” also states that two trademarks have different directions and utilize trade differently due to their difference in trademarks that might be appropriate to view those two trademarks separately. “The degree of resemblance between the trademarks or tradenames in appearance or sound or in the ideas suggested by them” was a part of confusion in the presented case, because the resemblance between Barbie and Barbie’s can be easily tracked. However, the other four factors identify those two trademarks as separate and equally strong to remain existent.

Unfortunately, such cases do not comprise the biggest threat for trademark utilization. People around the world try to incorporate new terms with their meanings in their everyday language, which negatively influences the trademark. Genericide refers to the global acceptance of the word that had to represent the trademark in its origin as another term that explains something else (“Trademarks vs. Generic Terms” 1). Such global acceptance of a different meaning can destroy the original name of the trademark, which will result in the company’s financial crash. It usually happens due to the improper usage of the trademark, while any word that becomes generic cannot be used as a tradename (“Trademarks vs. Generic Terms” 1). In the case of Elliot vs. Google Inc., the plaintiff stated that the word “Google” became generic because people use that word as a verb “to google.” The court found the trademark valid and not generic. However, the process highlighted many aspects of the decision-making process regarding the trademark power. The court stated, “The wording “google” only had four possible meanings: (1) a trademark designating the Google search engine; (2) a verb referring to the act of searching on the internet using the Google search engine; (3) a verb referring to the act of searching on the internet using any search engine; and (4) a common descriptive term for search engines in general” (Calboli 1). However, the trademark becomes generic only when the fourth description is dominant, in particular when the original trademark loses its influence (Calboli 1). The specific survey was utilized in order to make the right choice in that case. The survey was conducted to track the meaning that people place in the word “Google,” and it appeared that more than 90 percent of people understand that “Google” refers to the company’s name. Moreover, 94% of consumers identified Google as a brand or trademark. Furthermore, the survey also examined what people say when they want someone to search the information on the Internet, and 51% used the word “Google” in their answers (Calboli 1). Considering all previously mentioned statistics and the percent of people who do not utilize “to google” as a competitive term that could destroy the trademark, the court decided to solve the case in Google’s favor.

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There exist numerous ways to defend the Google trademark from becoming generic. One of them is to enforce correct grammatical usage (“Trademarks vs. Generic Terms” 1). For example, people can learn that it is wrong to write “Google” without a capital “G” in it. On the other hand, Google might also use the potential generic term with the trademark (“Trademarks vs. Generic Terms” 1). Google might promote the phrase “googling at Google.com,” so people might understand the difference between the meaning of those two words and Google might never vanish as a trademark. They might also change their advertising politics, because “to google” appeared due to the company’s mistake. They wanted the term “Google” to be more attractive, and so they made the verb “to google” too popular. For now, that verb threatens the company’s success due to its extensive usage. Therefore, the company has to avoid using the verb “to google” in their advertising (“Trademarks vs. Generic Terms” 1). Moreover, they can use the trademark notice in order to get the same effect as it could be from the right grammatical usage, but it can be easier to utilize it. Some trademarks notice like ® or ™ can play a crucial role in the trademark war (“Trademarks vs. Generic Terms” 1). Finally, they have to sue all offenders and protect their rights against lawsuits in order to promote their trademark and its uniqueness.

The term “Google” should never become generic, because it will destroy the corporate work and annihilate all investments in it. The common examples of genericized terms are “aspirin,” “hovering,” and “Xeroxing” (Tulett 1). Jewelry chain Tiffany & Co. once presented their product of engagement rings with a trademark “Tiffany,” which later became the genericized term for the solitaire-style comprising a diamond mounted on a single band with six prongs (Tulett 1). Still, people also utilize the word “to google” without any references to the Google search engine, which might further strengthen the perspectives of the other search engines in the future. For example, Robbie Williams stated that, “googling” a person is a common thing in today's society, while it does not matter what search engine they utilize (Duffy 1). Women who declined his intentions constantly change their minds when they google him on the Internet (Duffy 1). It is good for personal use, but not for the trademark promotion. The constant usage of the verb “to google” in the wrong way would diminish the trademark, while the company’s brand can be soon classified as genericide if people get used to that verb usage. It can happen if people prefer another engine at some time and will use “to google” only to describe the action rather than refer to the original brand name.

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Conclusion

In conclusion, it should be mentioned that genericized trademark is a big threat to any company, and the threat increases depending on the company’s popularity. Many trademarks were eliminated as people began using their names as general terms, e.g. “aspirin,” “Tiffany,” “hovering,” and “Xerox.” If the trend to use the word “google” as a verb remains popular, it will exert a negative effect on the trademark. It is important to incorporate new politics for Google in order to strengthen their trademark. Moreover, it is also vital to know the power of the trademark, because, when the trademark becomes genericized, it cannot defend itself anymore. People might win any lawsuits against Google and anyone will be able to name themselves as Google after all. Thus, it will annihilate company’s income and destroy the brand, while people will not even notice the scope of the catastrophe they had recently caused.

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