Trademarks

[centerpoint]

As I read the threads with respect to trademarks, a question comes to mind.

Maybe this is backward thinking but an example that comes to mind is Google’s PageRank. While Google has a trademark on it’s PageRank™, Technology over the last couple of years the words “page rank and pagerank” have become almost synonymous to search engine position and placement. Webmasters around the world commonly refer to page rank when discussing their sites position on the major search engines.

Is there a point where a trademark becomes so commonly used that it really could not be considered a trademark and would not survive a legal challenge?

At what point do most companies consider their trademarks so diluted that they no longer pursue infractions?

I see some companies that pursue almost every perceived infringement and others that never pursue infringement of their trademarks. Is there a reason why?

Does not pursuing possible trademark infringement affect their trademark in any way?

Thanks

Paul

 

[jberryhill]

"Is there a point where a trademark becomes so commonly used that it really could not be considered a trademark and would not survive a legal challenge?"

Aspirin.

Escalator.

Zipper.

Cellophane.

Nylon.

Thermos. (nope, not on the word anymore)

All of the preceding words have met death by genericide. It is the syndrome most feared by trademark attorneys, and greatly oversold to their gullible clients.

Failure to enforce can lead to problems with a trademark, genericide among them. So, everytime you see a magazine article where someone refers to a Kleenex or a Band-Aid, rest assured that editor will receive a "reminder letter" from the appropriate attorney pointing out its trademark status. Then, if that article is used as evidence of generic status later on, the attorney will reach into his pocket and whip out the corresponding letter that was sent in response. This is also true for certain trademark owners and domain names. I know of at least one company that sends out hundreds of c&d letters, and only ever goes after people who give them a hard time in response.

The main problem with the most frequently cited instances of genericide is that they suffered from the defect of being the only available term applied to the product. When you come up with something that doesn't have any name at all, it is important to coin a trademark and also to coin an official "generic" name for it. For example, the trademark "Viagra" and the generic term "sildenafil" are both coined words that refer to the same thing. Ditto the trademark "Lycra" and the generic term "spandex" (DuPont learned their lesson after nylon).