Generic Trademark

A generic trademark, also known as a genericized trademark or proprietary eponym, is a trademark or brand name that has become the generic name for, or synonymous with, a general class of product or service, against the usual intentions of the trademark's holder. Using a genericized trademark to refer to the general form of what that trademark represents is a form of metonymy.

A trademark is said to fall somewhere along a scale from being "distinctive" to "generic" (used primarily as a common name for the product or service rather than an indication of source). Among distinctive trademarks the scale goes from strong to weak:

• "Arbitrary"

having no meaning as to the nature of the product

• "Fanciful" or "coined"

original and having little if any reference to the nature of the product or service

• "Suggestive"

having primarily trademark significance but with suggestion as to nature of product

• "Descriptive"

not just suggesting, but actually describing the product or service yet still understood as indicating source

• "Merely descriptive"

having almost entirely reference to the product or service but capable of becoming "distinctive".

A trademark is said to become genericized when it began as a distinctive product identifier but has changed in meaning to become generic. A trademark typically becomes "genericized" when the products or services with which it is associated 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 to such an extent that the public thinks the trademark is the generic name of the product or service. A trademark thus popularized has its legal protection at risk in some countries such as the United States, 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.

The term genericized has also become a term used commonly when referring to brand pharmaceutical products that have lost patent protection and are experiencing competition from cheaper generic drug products. As an example, Lipitor was genericized in the U.S. when the first 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. Example: Industry analysts expect several other blockbuster drugs to undergo genericization between now and 2020.

Genericization or "loss of secondary meaning" may be either among the general population or among just a subpopulation, for example, 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) and Port-a-Cath (portacath), which have genericized mind share (among physicians) because (1) the users may not realize that the term is a brand name rather than a medical eponym or generic-etymology term, and (2) no alternate generic name for the idea readily comes to mind. Most often, genericization occurs because of heavy advertising that fails to provide an alternate generic name or that uses the trademark in similar fashion to generic terms. Thus, when 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's trademark "Escalator" for moving staircases in the same way. The Trademark Office and the 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."

The pharmaceutical industry affords some protection from genericization due to the modern practice of assigning a generic name for a drug based upon chemical structure. 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.