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How to Avoid Your Brand Becoming Generic
Get expert tips and real-life examples of trade marks that became everyday words, from Bubble Wrap to Sharpie.
Imagine this: you’ve spent years building a brand that truly stands out in a crowded market. Your trademark—let’s call it “EXCELLENCE REDEFINED”—is not just a catchy phrase; it’s a promise to your customers that your products and services are of the highest quality. But here’s the kicker: simply registering your trademark isn’t enough. To really protect your brand, you must use your trademark properly. If you don’t, you risk falling foul of the “use it or lose it” rule and the dreaded three-year non-use period—a situation where your hard-earned rights could vanish faster than you can say “genericide.”
As Jeff Bezos once said, “Your brand is what other people say about you when you’re not in the room.” This quote perfectly encapsulates the idea that your trademark isn’t merely a legal formality—it’s the very essence of your reputation. Every time your mark appears, it reinforces your brand’s promise. But misuse it, and you could dilute its impact, leaving your brand vulnerable to competitors and even legal challenges.
We casually say “Google” when we mean any web search, or “Rollerblades” when referring to inline skates—even though these names started out as trademarks. It’s a quirky twist of fate: when a trademark becomes so ubiquitous, it can lose its distinctiveness and even its legal protection. This phenomenon, known as genericide, isn’t just an amusing quirk of language—it has serious implications for brand protection.
Take Google, for example. Despite its common use as a verb (“to google”), the tech giant actively defends its trademark for search engine services. Contrast that with Band-Aid; while Johnson & Johnson’s adhesive bandage remains a trademark, in some countries it’s become a generic term for any sticky bandage. Similarly, Kleenex, Velcro, and even Photoshop are names you might hear used in everyday chatter, yet each company goes to great lengths to maintain their legal protection. In Australia, many of these brands, like Band-Aid and even Rollerblades, still enjoy trademark status—and that’s something we often take for granted.
Consider the case of Bubble Wrap. Originally trademarked by Sealed Air Corporation, it’s now the go-to word for any plastic cushioning material, even though the term remains an active trademark for Sealed Air. Then there’s Chapstick: Pfizer’s lip balm might be a registered trademark, but people frequently use “Chapstick” to refer to any lip balm. And what about Jacuzzi? Though it’s still a brand name, it’s become a generic term for any hot tub or whirlpool bath.
Other classic examples include Tupperware, Jet Ski, and even Zamboni—the ice resurfacing machine that everyone calls by that name, even when it’s made by a different company. Each of these cases illustrates the razor-thin line between a celebrated trademark and a generic term. Companies have to continuously work, through legal and marketing strategies, to ensure their trademarks don’t slip into everyday language and lose their exclusive protection.
Why Proper Trademark Use Matters
When you register a trademark, you secure exclusive rights to use that mark in connection with your goods or services. However, those rights come with a catch: you must actively use your trademark in commerce. In Australia, if you don’t use your mark for three consecutive years, it becomes vulnerable to cancellation for non-use. In simple terms, if you register “EXCELLENCE REDEFINED” and then let it gather dust, someone else might challenge your rights—and you could lose your trademark altogether.
Moreover, if there’s a change in your business ownership and the trademark isn’t properly transferred, it might be deemed as non-use by the new owner, leading to cancellation. Consistent, proper use isn’t just best practice—it’s a legal necessity for preserving your brand’s identity.
How to Use Your Trademark Correctly
Let’s break it down using our made-up example, “EXCELLENCE REDEFINED.” This is the mark you proudly display on your website, packaging, marketing materials, and anywhere else you connect with your customers. Here’s how to do it right:
During the Application Process:
While your trademark application is pending with IP Australia, always display the TM symbol (™) alongside your mark. For instance, your website header might read:
“Welcome to Our Store – EXCELLENCE REDEFINED™”
The TM symbol serves as a public notice that you claim rights in the mark—even though it isn’t yet registered. It tells competitors and the public that this phrase is an integral part of your brand identity.
After Registration:
Once your trademark is officially registered, update your usage to include the registered trademark symbol (®). Your website and all promotional materials should then display:
“Welcome to Our Store – EXCELLENCE REDEFINED®”
Remember: the ® symbol is reserved exclusively for registered trademarks. Using it before registration is not only misleading but may also result in penalties.
Consistency Is Key:
Always use your trademark exactly as it was registered—same font, colour, and style every single time. Inconsistent use can weaken your claim and might allow competitors to argue that your mark isn’t distinctive enough.
Avoid Generic Use:
Your trademark should clearly stand out as a unique brand identifier. Don’t simply write “Excellence redefined” in varying fonts and colours throughout your website. Such generic usage fails to signal that it’s a legally protected mark.
FAQs on Proper Trademark Use
Q: What does the TM symbol mean, and when should I use it?
A: The TM symbol indicates that you claim rights to your trademark, even if it hasn’t been registered yet. Use it on all your promotional materials, websites, and packaging while your application is pending.
Q: When can I start using the ® symbol?
A: You may only use the ® symbol once your trademark is officially registered with IP Australia. Until then, stick with the TM symbol.
Q: What happens if I don’t use my trademark for three years?
A: Under the “use it or lose it” rule, if you fail to actively use your trademark for three consecutive years, your mark may be subject to cancellation for non-use. This rule ensures that only marks actively used in commerce receive legal protection.
Q: How do I ensure that my trademark is used consistently?
A: Consistency is crucial. Always present your trademark exactly as registered—using the correct symbols (TM or ®) and maintaining the same style, colours, and format. Inconsistent use can dilute your brand’s distinctiveness and weaken your legal claim.
Q: What should I do if there’s a change in business ownership?
A: If your business ownership changes, it’s essential to transfer your trademark registration to the new owner immediately. Failure to do so can lead to non-use claims and potential cancellation of your trademark rights.
Q: Can I use my trademark in different contexts?
A: Yes, you can use your trademark on your website, product packaging, advertising materials, and more. However, always ensure it’s presented in a way that clearly distinguishes it as your brand. Avoid generic or inconsistent usage that could dilute its uniqueness.
The “Use It or Lose It” Principle and the Three-Year Rule
One of the cornerstones of trademark law in Australia is the “use it or lose it” doctrine. Simply put, if you don’t actively use your trademark for three consecutive years, it becomes vulnerable to cancellation. This rule exists to ensure that trademarks truly represent active, genuine commerce rather than being registered and then shelved.
Imagine you register “EXCELLENCE REDEFINED” and then, for whatever reason, you stop using it—perhaps you rebrand or change your product line. If you don’t resume use within three years, your trademark could be cancelled by a competitor. Moreover, if your business changes hands and the trademark isn’t transferred properly, the mark might be deemed abandoned. In either case, losing your trademark can have serious repercussions for your brand’s identity and market position.
Fun Facts About Generic Trademarks: When Brands Become Everyone’s Business:
It’s fascinating how some trademarks become so synonymous with their product category that they lose their distinctiveness. Here are ten classic examples:
Bubble Wrap:
Originally trademarked by Sealed Air Corporation, “Bubble Wrap” is now used to describe any cushioning material made of plastic bubbles.
Chapstick:
While still a registered trademark of Pfizer, many people use “Chapstick” generically for any lip balm.
Jacuzzi:
Though still a brand name, “Jacuzzi” has become the go-to term for any hot tub or whirlpool bath.
Band-Aid:
Johnson & Johnson has worked hard to maintain this trademark, but “Band-Aid” is frequently used generically for any adhesive bandage.
Styrofoam:
A trademark of Dow Chemical Company, “Styrofoam” is often used for any polystyrene foam product—even though true Styrofoam is only used for insulation and craft applications.
Velcro:
While still a registered trademark, “Velcro” is commonly used to describe any hook-and-loop fastener.
Dumpster:
Originally a trademark of Dempster Brothers, “Dumpster” is now widely used for any large waste container.
Q-tips:
A trademark of Unilever, “Q-tips” is often used generically for cotton swabs in the U.S. and Canada.
Popsicle:
Another Unilever trademark, “Popsicle” has become a generic term for any frozen ice pop.
Sharpie:
While still a trademark of Newell Brands, “Sharpie” is frequently used generically for any permanent marker.
These examples show how successful branding can sometimes lead to genericisation, where a trademark becomes so widely used that it becomes synonymous with the product category itself. This phenomenon, known as genericide, is a double-edged sword—it means your brand has achieved widespread recognition, but it can also result in the loss of trademark protection if you’re not careful.
Practical Tips for Protecting Your Trademark
Always Display the Correct Symbol:
Use the TM symbol while your application is pending, and switch to the ® symbol once your trademark is registered. This clearly indicates your legal claim.
Maintain Consistency:
Ensure that your trademark looks the same everywhere—on your website, product packaging, advertisements, etc. Consistent use strengthens your brand and protects your legal rights.
Monitor Your Use:
Keep a record of where and how your trademark is used. This documentation is invaluable if you ever face a non-use challenge.
Update Ownership Details Promptly:
If there is a change in business ownership, update your trademark registration immediately to avoid non-use claims.
Educate Your Team:
Make sure everyone in your business, especially those in marketing and product development, understands the importance of correct trademark usage. A well-informed team is key to maintaining your brand’s integrity.
Final Thoughts
Your trademark is not just a legal formality—it’s one of your most valuable business assets. It encapsulates your brand’s promise to your customers and sets you apart from the competition. Using your trademark properly isn’t merely about ticking boxes; it’s about building and maintaining a strong, recognisable identity that endures over time. Every time a customer sees your trademark, it should reinforce their trust in the quality and uniqueness of your products or services.
At Sharon Givoni Consulting, we live by our motto: “turn your ideas into assets.” We believe that with the right legal guidance, you can transform your innovative ideas into enduring business assets. Our mission is to simplify the complexities of trademark law so you can focus on what you do best—delivering exceptional products and services that live up to your brand’s promise.
Remember, in the world of trademarks, proper usage is vital. Use your trademark correctly, or risk losing it. Integrate your mark into every facet of your branding—from your website and social media to product packaging and advertising. With consistent, correct usage, your trademark will remain a powerful symbol of your business’s commitment to excellence.
Ready to protect your brand and turn your ideas into assets? Contact Sharon Givoni Consulting today for expert advice on trademark usage and registration. Let’s ensure your trademark is used correctly—because when it comes to protecting your brand, it’s use it properly or risk losing it!
By following these best practices, you’ll not only comply with legal requirements but also fortify your brand’s identity in a competitive marketplace. Embrace your trademark, use it proudly and consistently, and watch as it becomes an enduring asset that truly reflects your business’s promise to your customers.
And remember, as Walter Landor wisely noted, “Products are made in the factory, but brands are created in the mind.”
Please note the above article is general in nature and does not constitute legal advice.
Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.