Скачать или смотреть What is A Generic Trademark? | Trademark Attorney in Dallas TX Explains

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Let’s suppose you had a fruit cart, and you sold apples. Could you buy the url “applecart.com” and then register “applecart.com” as a trademark in an effort to prevent a competitor from using a confusingly-similar term on their own apple cart? In short, no.

In general, trademark law doesn’t allow anyone to claim as a trademark any term that is “generic.” What is a “generic” term? It’s anything that is the name for the product or service that is the subject of the claimed trademark. For example, I can’t register the term “car” for automobiles, because it’s generic; the mark sought to be registered is the name for the goods in the trademark. The reason why generic terms can’t serve as trademarks is twofold:

1) Generic marks are not distinctive. The purpose of a trademark is to distinguish your goods and services from those of another company. When the proposed trademark is the name of the “thing” it’s not at all distinctive of the source of the goods, it’s just the common name for the goods. That does not distinguish the goods as coming from your company versus coming from another company, thus the term fails to function as a trademark.

2) The grant of a trademark registration to one company necessarily prevents others from using that term with those goods, so it would prevent others from fairly describing their goods and services. A trademark grants to the owner the exclusive right to use that mark in commerce with those goods or “related goods.” If we were to grant one company the trademark CAR for automobiles, it would necessarily prevent other automobile makers from saying that they, too, manufacture cars.

Marks can, through improper use, become generic when (paradoxically) the trademark becomes so famous that consumers start calling the goods that are the subject of the trademark by the trademark itself. This is how Otis Escalator Company lost the trademark for ESCALATOR, and ASPIRIN, ZIPPER, and CELLOPHANE suffered a similar fate. Because of this, many famous brands are vigilant about calling their products things like “Kleenex brand facial tissue,” or “Band-Aid brand bandages.”

It’s important to realize that the question of whether a mark is “generic” is always analyzed in the context of the goods and services. While the mark APPLE is generic for a fruit cart that sells apples, the mark APPLE is distinctive for use on electronics. This is because in the first instance, the mark is the word for the goods, and in the second instance, the mark is distinctive for the goods, and lacking any qualities that would tend to describe the goods.

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