Genericide can be the end of a Trade Mark

It’s every marketer’s wildest dream. The brand that they are marketing has achieved wide spread recognition and fame and is now so closely associated with the products that virtually no effort is required to market the brand. People talk about the product by referring to the brand and it has national or international recognition. While this may be every marketer’s dream, this is every Intellectual Property lawyer or Trade Mark Attorney’s nightmare. With great recognition comes the risk that the brand or trade mark is at risk of genericide, or removal from the Trade Mark Register because it is no longer inherently adapted to identify the mark. The mark comes to define a product, instead of being used as a badge of origin, and then that trade mark loses its value.

Key Takeaways on Trade Mark Protection

  • Use ™ or ® after your registered trade marks in all advertising or promotional material
  • Use your trade mark in conjunction with a noun. For example, “THERMOS flask” or “EVIAN water”.
  • Maintain tight control of your trade marks through licences and strict usage requirements.
  • Don’t use your trade mark in a descriptive way. Don’t say “Xerox it” say, “Make a copy with your Xerox copier”.
  • In New Zealand, inactivity of the trade mark owner is a key factor in ‘genericide’ or removal, so be proactive in maintaining and demonstrating correct usage.

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