Generic Trademark - Legal Concepts

Legal Concepts

Whether or not a mark is popularly identified as genericized, the owner of the mark may still be able to enforce the proprietary rights that attach to the use or registration of the mark, as long as the mark continues to exclusively identify the owner as the commercial origin of the applicable products or services. If the mark does not perform this essential function and it is no longer possible to legally enforce rights in relation to the mark, the mark may have become generic. In many legal systems (e.g., in the United States but not in Germany) a generic mark forms part of the public domain and can be commercially exploited by anyone. Nevertheless, there exists the possibility of a trademark's becoming a revocable generic term in German (and European) trademark law.

The process by which trademark rights are diminished or lost as a result of common use in the marketplace is known as generification or genericide. This process typically occurs over a period of time in which a mark is not used as a trademark (i.e., where it is not used to exclusively identify the products or services of a particular business), where a mark falls into disuse entirely, or where the trademark owner does not enforce its rights through actions for passing off or trademark infringement.

One risk factor that may lead to genericide is the use of a trademark as a verb, plural or possessive, unless the mark itself is possessive or plural (e.g., "Friendly's" restaurants).

However, in highly inflected languages, a tradename may have to carry case endings in usage, for example in Finnish "Microsoftin" (genitive case) and "Facebookista" (elative case).