But we are told that in 1900, James Walter Thompson (JWT) published a house advertisement explaining trademark advertising in an early commercial description of what everyone now recognizes as branding. A brand name constitutes a type of trademark, if the brand name exclusively identifies the brand owner as the commercial source of products or services.



A trademark may therefore be described as “the body of origin, comprising a name, word, phrase, logo, symbol, design, image or a combination of these elements." It also includes a range of non-conventional signs such as shapes, sounds, moving images, taste, etc. However, certain types of terms and symbols are completely excluded from registration as trademarks, e.g. emblems, national flags, deceptive marks, obscene marks, etc.

While the ™ symbol is usually used when trademark rights are claimed with regard to a mark, whereas the mark is still awaiting statutory registration, the ® symbol is used to indicate that the mark has been registered with the government trademarks. Either symbol is found in the top left-or right-hand corner of a mark, e.g. check the Indomie mark; though the ® symbol confers some benefits on the owner, especially from a legal perspective, it may not necessarily enhance the value of his trademark.

Studies may have shown that the best trademarks are ‘fanciful’ words, e.g. Kodak, Yahoo!, etc. ‘Kodak’ was not in the dictionary before it was adopted and used as a trademark in relation to goods, photographic or otherwise. It is also believed that the worst trademarks are descriptive as to the origin of their associated products or services (Seth Godin 2007), e.g. ‘Agege Bread,’ though this may just be a nick-name. Descriptive trademarks usually have a dictionary meaning which is used in connection with products or services directly related to that meaning.

‘Apple’ is an arbitrary trademark as far as computers are concerned otherwise what has apple got to do with computers? Though arbitrary trademarks consist of words or images which have some dictionary meaning prior to their adoption as trademarks, they are used in connection with products or services unrelated to that dictionary meaning, e.g. Orange is a telecom company in the UK.

A suggestive trademark on the other hand indicates the nature, quality or character of the products or services in relation to which it is used, but does not describe this feature, thereby requiring imagination on the part of the consumer to unravel the characteristic, e.g. ‘Sunny’ used in connection with air conditioner. One way of knowing if the character of a trademark stands out is by considering a consumer’s reaction to it, e.g. the mark may be inherently registrable if the consumer has never encountered it before. Conversely, the mark may not likely register if it informs him about any attribute of the relevant products or services, e.g. whether they are tasteful, filling, crisp or delicate, in the case of food.

It is opined that preference be given to marks which are inherently distinctive when considering selecting and using trademarks because they have the strongest distinctive character and do not need evidence of patronage to prove their distinctiveness. Do you still say “help Xerox this document"? Well I am not happy to inform you that Xerox Company recently bought print advertisements declaring that you cannot ‘xerox’ a document. However, “you can copy it on a Xerox brand copying machine." Similarly, Adobe sent e-mails to many web authors fond of using the term “photoshopped," telling them that they should only use the expression “modified by Adobe® Photoshop® software."

Also in 2005, a foreign magazine, Private Eye, received correspondence from Portakabin Ltd insisting that the publication refrain from further use of “Portakabin" as a generic term for a small, temporary external building, claiming that such use only damaged Portakabin Ltd’s trademark rights. How about other generic trademarks like aspirin, bikini, brassiere, cola, escalator, videotape, jeep, etc? Notice that your computer does not underline these words! Before these trademarks became generic and belonged to everyone, they were worth many millions of dollars, e.g. by the time aspirin turned generic, the people who developed it had become extremely wealthy.

The Bayer Company’s trademark has been ruled generic in the United States, so other companies may use aspirin for acetylsalicylic acid as well. A generic term is a common name for the products or services in connection with which it is used. It therefore may not be able to serve the essential trademark function of differentiating the products or services of a business from the products or services of other business concerns. If a court rules that a trademark is ‘generic’ as a result of common use, the corresponding registration may also become invalid.

But why should Xerox, Adobe, etc. worry that a phrase they invented is being used globally? That everyone knows ‘bikini’ should actually be a compliment! Is it not synonymous with people being interested in what you have to sell? Many people may well make up their minds to patronize you! Recall that when Chrysler created the Jeep® there was nothing like the Sports Utility Vehicle (SUV). But the Jeep turned out to be the name for that idea. Every generic trademark has proved to be the easiest way to describe something, e.g. how else do you refer to the escalator!

When the engineers at Xerox launched the 914 in 1959, it was the world’s first automatic plain-paper copier. The new invention needed a name- and the name chosen was Xerox. Which is easier to call: ‘iPod’ or ‘iPod brand MP3 player’? But Apple, its owner, has been busy suing people who use the word ‘Pod’ to describe other similar devices. Truly, iPod is not the only pocket-sized music player, which can store thousands of songs; other MP3 players include IRiver’s H320, Creative Technology’s Zen Touch as well as Muvo2. So what will Apple do with the fellows who coined the term “podcasting"?

Generic marks are generic because they have lost their distinctive character- are you therefore surprised that Xerox, Apple, etc. would do all things possible to prevent succumbing to ‘genericide’? But there are experts who believe that preventing genericism depends less on the efforts of trademark owners and more on how the public perceive and use the trademarks. In view of the paradox a trademark faces, it is not surprising therefore that manufacturers, providers and suppliers try to consistently provide quality products or services in order to maintain their business reputation- this is in spite of the existence of trademark dilution as well.

A trademark becomes diluted when the use of similar or identical trademarks in other non-competing markets shows that the primary trademark will lose its capacity to signify a single source, e.g. Stb (advertising) and Stb (banking).

So which is better: creator of a phrase known by millions of people all over the world or owner of a little corner of the world? I agree that the challenge generic trademark owners have is their creating names for items that needed a word. It is not only a problem- it could be a big advantage after all! Talk of creative thinking and error-minimization at the early stage; owners of such trademarks can actually recover from genericide (are you reminded of ‘genocide’?).

Anti-genericide issues that may be considered are: do you adopt a clumsy name? ; do you hinder your idea? ; do you come up with a slightly better idea for something that already has a good name and idea? You may not have known that “Xeroxing a document" is a very wrong expression. How about “buying a Toyota Jeep"? Don’t women “wear bikinis to the beach"? The other day a colleague aggressively tried selling her conviction about why “we should have portakabins within our office premises." And wait for this: “I think we should have a cola."

These expressions are not grammatically wrong. The problem with them is that they are anti-trademark and therefore guilty of genericism! Of course, being an innovator has its risks and one of them is genericide; I am therefore in solidarity with my friends who love using expressions like “I texted you," “I’ll sms you" even as I have resorted to “trademarking" this article!

You will notice that your computer underlines ‘texted’, ‘trademarking’, and ‘sms’ in the preceding sentences- they are grammatically wrong. Even ‘genericide’ and ‘genericism’ are computer-underlined!

Did you say creative thinking? .............................Do not quote me anywhere!