How to: prevent your brand becoming generic
Preventing your trade mark from entering into common language is an essential part of maintaining ownership of your brand.
Allowing others to use your mark without your consent, or without clarifying the rules around the use of your mark, can lead to words becoming part of common language or generic descriptions. This is exactly what happened to marks that were formerly registered trade marks such as “Aspirin”, “Escalator”, “Sellotape” and “Trampoline”.
To avoid this happening to your word mark(s), follow these simple steps:
DO Do use the ™ symbol next to your trade mark(s) as soon as you start using them. Many people think the ™ symbol means that a mark is registered, so using the ™ symbol not only puts people on notice that you consider your mark to be your trade mark, it is also a great deterrent against misuse by others. You can use the Ⓡ symbol as well (or instead) once the mark is registered.
DON’T Don’t use the mark in a descriptive way e.g. “Make sure you sellotape the envelope closed”. Using the mark as a verb or noun will dilute the distinctiveness of the mark. Instead use the mark as a proper adjective, preferably capitalised and in combination with the descriptive noun e.g. “Make sure you use Sellotape™ tape to keep the envelope closed”.
DO Do consider applying for a trade mark registration in the country or countries where you market your goods / services – in NZ this is IPONZ. Without a trade mark registration you will be depending on consumer protection legislation to enforce your rights (in NZ this will be under the Fair Trading Act and/or common law tort of passing off).
DON’T Don’t let others use your trade mark without clear guidelines for use (based on the guidelines in this checklist) and make sure you secure your rights before allowing anyone else to register your mark(s).
DO Do keep an eye on the use of your mark by others. If you allow others to use your mark in a descriptive manner, then it may become generic. If you see others using your mark without your consent, a trade mark registration will give you clear rights to demand that they stop.
Use this checklist to ensure your marketing material refers to your trade mark appropriately and your trade mark(s) should remain yours for years to come.