A trademark is one among the most precious assets of a business. It embodies your identity as a brand and sets your products or services apart from others on the market. On the other hand, a trademark may be a victim of its own success if it has been cemented into the public consciousness as meaning a certain product or service instead of a specific source, which is a situation referred to as genericide.
Such as previously trademarked words which became so prevalent that they lost their protection like Escalator, Xerox, and Thermos. So, while you’re pouring effort into protecting that brand you should also be working to protect your trademark from falling victim to genericide. Here is how businesses in India can protect their trademarks to not become generic.
Understanding Genericide
Genericide is when a mark that should – ideally – identify a source-of-goods comes to identify the class of goods available to the public. As soon as members of the public start using the brand name generically, the trademark owner is in danger of losing trademark protection.
So, for instance if everybody started calling every photocopier a “Xerox machine” instead of a machine made by the Xerox brand, the trademark could become a candidate for loss in court proceedings.
A trademark in India is protected under the Trademarks Act, 1999, as long as it continues to be distinctive.
Common Causes of Genericide
Trademark genericization occurs for a few different reasons:
- Over-commercial success — A strong market presence could cause consumers to begin referring to the product as the name of the brand.
- Gotta Use the Trademark Right – If consumers and businesses do not properly use the trademark, it may become generic.
- No Enforcement of Marks – If you do not take action against improper use, distinctiveness is lost.
- No Generic Substitute – If there is no other term for the product, the trademark may become generic.
- included in Dictionaries – If a trademark is described in a dictionary as a generic word, it can be a sign of generic use.
How to Keep the Trademark for Your Great Idea in a Grown Up World
- Guide the Public with Suggestion for Correct Use
Proper education of consumers, businesses, and the media on how to use your trademark is arguably the best defence against genericide.
Keep reminding that trademark is a brand not a type of goods
- Consistently use the Trademark Symbol (® or ™ )
By having this ® (registered trademarks) or ™ (trademarks pending registration) right next to your brand name, you demonstrate that it is a legally protected mark.
For instance: Always Google® Search Engine, never just Google.
- Don’t Verb or Noun Your Trademark
Using the trademark in verb form or as a noun is a frequent error that leads to genericide. Like, saying “Just Google it” instead of “Search it on Google” dilutes the strength of the trademark.
Reinforce proper usage, as in:
- (Make a Xerox® copy) O (Xerox this document)
- Instead of applying a Band-Aid, »Use a Band-Aid® bandage«
- Supervise and Regulate Use
Keep track of how your trademark is being used in:
Media and press (magazines, newspapers, websites)
Hashtags, posts and comments on social media platforms
- Ads & product listings for competitors
If they find any misuse, issue cease and desist letter and if it continues, file matter under the provisions of Trademarks Act, 1999 to save your brand from dilution.
Trademark Licensing and Trademark / Trademark Licensing Agreement
For example, if your trademark is being used by outside groups (e.g., franchisees, partners, and distributors) then there needs to be rules of use laid out and adhered to. Draft agreements specifying:
Step 1: How to Properly Use in Marketing Materials
- Restriction from changing or shortening the mark
- Brand Protection by Measures of Quality Control
Step 2: Adding a Non-Trademark/Generic Term To Your Mark
Prohibit overuse of your trademark to ensure that it remains a unique term Examples:
- “Toothpaste from Colgate®” instead of “Colgate.”
- Use “Velcro® fasteners,” not just ”Velcro”
- “Maggi® Instant Noodles” not only ”Maggi;”
Challenge Dictionary Entries
Or, if your trademark is so broadly used that it appears in dictionaries as a generic word,
sake steps to ensure those dictionaries know that your trademark is a proprietary name.
Renew Your Trademark on Time
In accordance with the Trademarks Act, 1999, trademarks registration in India are to be renewed after every 10 years. Not only does failure to renew put your trademark in danger of cancellation, but also raises the odds of falling victim to genericide.
How can you legally protect your Trademark from becoming Generic in India
Indian trademark law offers businesses protection if their trademark is susceptible of being generic:
- Of course Trademark Infringement suits – Suits can be filled against those who are misusing your mark.
- Generic Use Prohibition – In journal articles, for example, your trademark can be used generically; otherwise, you can go to court.
- Defence to Trademark Cancellation: In the event that someone tries to cancel your trademark on the grounds of genericide, controlled usage can be demonstrated.
Conclusion
Protecting the uniqueness of your trademark is the best way to prevent genericide. Through public education, correct use of the trademark, monitoring the use of the trademark, and enforcement of stringent guidelines, businesses can ensure that their brand remains protected in a legal sense.
Explicit safeguarding helps to protect your brand name as a potentially powerful asset and not fall into the public domain due to continuous trademark protection.
Kaagzaat provides professional trademark registration and protection services in India.
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