PictureHarvesting crops in the city: easier than getting a trademark on a generic phrase.
Being a blog whose namesake is “antigeneric”, I reserve the right to rail against the generic. Generic trademarks are the bane of a trademark attorney’s existence. A generic mark leaves lawyers with nothing to do: nothing to register, nothing to enforce, nothing for clients to use to create good will and compound on it to create value in their brands. For the client, a generic trademark represents a huge missed opportunity to reach customers and create an aura around a product or service; it may even be a detriment to a client if a re-branding campaign is required. Moreover, rebranding can be expensive and provide pause even to the most gung-ho marketing team. After all, who wants the stress and financial headache of starting from square one?

These are the rules that apply to many for-profit, and even non-profit organizations. The name of the game is name recognition, with an underlying economic motivation of economic gain. Consumers recognize the symbol, attribute it to a single source, draw upon prior experiences with products/services bearing that symbol, purchase the product, and enjoy. Rinse and repeat a thousand times (or hopefully many more) and you get goodwill. The owner hopes that it will have exclusive ownership over the symbol so that consumers won’t choose a competitive product thinking it to be from the owner. Economics therefore plays a role at two levels. On the purchasing side, it embodies the intangible associations between the name and the source. On the sale side, it represents the desire to prevent others from creating the same association using a similar symbol. 

Earlier this week, Google announced that the company would be operating under a different banner: Alphabet. Some linguists have speculated that the driving force behind the name change is to prevent GOOGLE from becoming generic for search engine services. Becoming generic is the death knell for a trademark because it means that the mark is no longer a source identifier and does not point to the original owner, a critical function of trademarks. Practically, this means that the owner cannot stop others from using the brand on their own products. So how could a brand that is estimated to be worth $66 billion be in jeopardy?

There aren’t too many trademark owners out there who can say they have built a monopoly in a specific name. Just as it is hard for a company to achieve dominance and operate as the sole-provider of a particular product so it is hard for a company to achieve brand name exclusivity. And that’s what this post is about: brand monopolies and the MONOPOLY trademark. It’s a relatively intriguing story about a brand that was built-up, lost, and regained.

Everyone is familiar with Monopoly. Many a family have bonded, torn each other to shreds, and reconciled over a game of Monopoly (sometimes even in a single sitting). It has been an icon of “game night” for years and has been the defining centerpiece of coffee tables and hallway closets for years. And as if that wasn’t enough to pique the interest of even the most bored-of-board game types, McDonald’s annual Monopoly promotion provides a delicious and addicting extension of the game. Elsewhere, you can find Monopoly branded slot machines, an all-purpose calculator, cuff links, and even bathroom fixtures and towels. That has to cover pretty much all bases.

Given all these marketplace identifiers, one would suspect that the brand MONOPOLY is a solid name and not subject to any kind of challenge, especially that the name is “generic” for any type of board game. The hallmark of a generic name is one that broadly identifies a category of products (in this case, board games that put players together in a quasi-free market to buy and sell properties), usually because consumers don’t know any other way to identify the product without using the name. Without ties to a single company as the source of a product, a generic name is available for general use by the marketplace.

Yet that is exactly what a slew of court opinions found in the 1970s when an activist professor sought to name his board game Anti-Monopoly as part of a campaign to inform consumers about the ill-effects a monopoly could have on a marketplace. How could a brand with a 40-year history of success in the U.S. and abroad, with an exclusive hold as the identifier for a special type of board game be in doubt?

PictureThanks to the "TaxProf" Blog for this Pic.
Jell-O, it’s the fun way to enjoy an after-school snack. With Bill Cosby sporting a bow-tie and tuxedo graced by similarly-dressed kids stuffing their faces with gelatin molds in the shapes of dinosaurs and giant lips, how could you resist buying a box or two on your next trip down the aisle at Wal-Mart? After all, it’s the snack that’s so easy to make “a Child Can Prepare it.” Jiggling fruit gel molded into funny shapes. Good, clean family fun, right? At least, that’s the image that Jell-O enjoyed for the first 100 years of its existence. As many who enjoy a good party now and then can tell you, the demographic for Jell-O has shifted ever so slightly from housewives and dessert-loving kids to college students, ravers, and club hoppers. Ergo, people who enjoy preparing a libations in the form of gelatinous molds.

With such a shift you would think that Jell-O may have noticed, and may have seized on the opportunity to correct a trend that promises to potentially take the Jell-O trademark into the abyss of genericide (I know, I use that term a lot, but the ominous nature of the topic deserves repeating). Instead, it looks like they are doubling down on a co-branding initiative with various universities across the U.S. to promote Jell-O molding kits that include university molds. As a well-known trademark attorney has remarked, there appears to be some double-speak about Jell-O’s true demographic here, or at least the real reason behind this initiative. After all, we know what most food items bearing university insignia (or any type of sports insignia) go hand-in-hand with one of America’s favorite pre-game past times: tailgating. And what does Jell-O and tailgating have in common? If you said most-creative mold making contests, you are wrong. 

I will admit that I have never gotten on the whole Pinterest trip, despite being surrounded by family and friends who love the site. Not that I have anything against the platform; I just don’t understand how it works and have never put the time in to learning. I have so many other social media platforms to keep up with! The basics make enough sense to me that I can summarize them as follows: Pinterest is a type of software platform that allows users to share content in the form of visual bookmarks that others with like interests can browse in order to become more informed about (or be entertained by) a particular subject. Users of the site place items on their digital posting boards. The posting medium is given the name “pin”, a cute reference to the fact that items are digitally pinned to a particular page.

I may not use the site, but one thing about the site (or is it an application? platform?) that did capture my interest was Pinterest’s recent move to protect the “Pin” trademark. Apparently it’s something that the website wants to be known for. Pinterests’ platform is sleek and the concept is cool. It is the perfect play to a consuming audience that thrives on information and the ability to share it. So maybe it was only a matter of time until other market entrants attempted to get a piece of the pie.

Enter Pintrips in 2011 with a similar concept to that of Pinterest: through a website, users can collect, compare, and share information about a particular interest by using a “pin”. Yes, that’s right. Pretty much exactly what Pinterest allows. Pinterest even had their own “pin” button.

Now we come to the namesake of this blog. The true aim and solemn goal that I try to affect each time I put finger to keyboard: educating the world on the dangers of generic trademarks.

When most of us were kids, we were told not to say certain words. We were admonished that these words are “bad” and that if we used them, evil things would pay us a visit and we could even end up with soap in our mouths. When we grow up, there are plenty of bad words too, although the list of bad words may not be the same as it was when we were kids. Well it wasn’t too long ago that “BlackBerry” was a bad word. It symbolized obsession and workaholism, that constant urge lurking at the back of your mind like the guy in the back alley who knows you have an addiction. Indeed, the impact of the BlackBerry devices on people’s lives was so significant that it earned the not-so-glamous mantra of “crackberry”, a not-so-subtle reference to the fact that a BlackBerry device is as addicting as a drug.

No, I’m not saying that blackberry is in fact a bad word, but it did almost go the way of becoming one in trademark owners’ and lawyers’ minds.

Let me do some explaining before you tell me to wash my mouth out.