- Historic Sites
Marks For The Marketplace
The Curious World of the Trademark
October 1977 | Volume 28, Issue 6
The home office got the point, corrected the error, and someone with a sense of humor bestowed the name Scotch brand on the tape. Thus the Scotch concept, strengthened by a tartan design, became a valuable trademark suggesting satisfaction and economy, and has since been applied to hundreds of the products of this high-technology company.
Some marks, which incorporate words like “Royal,” “Premier,” “Black and White,” or “Star,” are rated as “weak” because they are common descriptive adjectives and so other companies may appropriate them in other fields without incurring any legal liability whatsoever. Castle & Cooke, one of the famous “five companies” of Hawaii, sold macadamia nuts under the brand name “Royal Hawaiian” and claimed infringement when another corporation applied for registration of the same term for a line of liqueurs. But the Patent Office rejected the argument. It ruled that there was no reasonable likelihood that purchasers would get confused between Royal Hawaiian liqueurs and Royal Hawaiian nuts, so the liquor company was entitled to register the trademark for its own field of products.
Other marks are rated as “strong” because they are distinctive, original, fanciful, and set the product apart from all others. Aunt Jemima is one of these, but the classic example is Kodak. The name was thought up by George Eastman to identify his cameras and camera supplies. Philologically the word is meaningless—and startlingly abrupt. “Bitten off by consonants at both ends,” one trademark historian has written, “it snaps like a ‘Kodak’ shutter.”
Whether they are strong or weak, all trademarks must be watched over and policed because of a paradox. They can be too successful, in that their very success may lead ultimately to their demise. This occurs when a brand name becomes so completely connected in the public mind with a whole class of articles—whether it be cosmetics, cereals, vacuum cleaners, chewing gum, or whatever—that the purchaser regards it as being the name of the type of product, not of a specific one. At that point, which is usually determined by a court test, exclusiveness can slip away entirely and the legal rights in the brand name are destroyed forever. When the owner of a trademark lets down the guard to that extent, Dorothy Fey, executive director of the United States Trademark Association, calls the result “Genericide.”
Some precautions for protecting a mark from becoming generic are:
The name should be capitalized. If it is written in lower case, the name should be enclosed by quotation marks.
Since a trademark is a proper adjective, it should, wherever possible, be followed by the common name (noun) of the product, as in Band-Aid brand adhesive bandages or Pyrex brand glassware . There are occasional exceptions, as when the consumer understands beyond the shadow of a doubt. A Buick is a Buick. Nor does Procter & Gamble need to say that Tide is a detergent in every printed advertisement.
If the trademark is registered, all printed matter should make that fact clear. There are several acceptable ways of doing this, the shortest and simplest being the association of the trademark with a capital R in a circle: ®. Danger signals are the use of the possessive, “nouning,” “verbing,” and the appearance of the plural. “Please don’t use our name in vain. Use it the way the good law intended,” the Xerox Corporation pleads; and when former Senator Sam J. Ervin, Jr., chairman of the Watergate investigating committee, spoke casually of “xeroxing” some material during the televised hearings, he received a courteous but educative letter from the Xerox people on trademark grammar.
Many firms have standard letters ready to be sent when necessary to writers, the distributors that handle their merchandise, the general public, and lexicographers, thanking them politely for their interest in the product but chiding them for sinning against the law of trademarks. Company executives are precise in speaking, careful in writing even the most informal internal office communications. They issue instruction pamphlets and schedule special advertising campaigns in publications read by editors and journalists. “ Only Dow makes Styrofoam brand insulation and buoyancy billets!” the Dow Chemical Company pointed out in an advertisement. “Please, hit that capital S when typing Styrofoam or mark it UC [upper case] on proofs.… Thank you.”