The makers of the moving stairway and the vacuum flask got what they wished for,
But it was not what they wanted. They wound up with a popularity problem.
The result was genericide.
Popularity Problems
Our story begins with the name of a good or service that a company wants to use exclusively. At that point, they can apply for trademark protection from the U.S. government. However, if the name becomes a generic product category because of the item’s popularity, a court could withdraw its trademark. Called genericide, trademark cancellation has hit a long list of companies:
- Otis introduced the first “moving stairway” in 1900. By 1950, the company and everyone else called the device an escalator. As a result, in court, Otis lost the right to the name’s trademark.
- We first could have purchased a “vacuum flask” in 1904. And yes, the company called Thermos came to be synonymous with its device. Until 1963, they had the sole rights to this trademarked name.
- In 1929, we got the first “toy on a string” from Duncan. As the name yo-yo became more widespread, the company told us that “if it’s not a Duncan, it’s not a yo-yo.” Still, in 1965, they lost the trademark right that gave them the exclusive right to the name..
To escalator, thermos, and yo-yo, we could add the “rebound tumbler” (trampoline) and dry ice. More recently, Apple objected to the Appstore for Amazon. However, in 2013, it abandoned its trademark battle.
In 2017, Google resisted genericide when a court said it still had an enforceable brand. And Kimberly-Clark has kept its Kleenex trademark even though many of us use it interchangeably with tissue.
Our Bottom Line: Trademark Protection
Whether referring to an escalator or a thermos, the U.S. trademark system has preserved the right to own a brand. (I have econlife trademarked.)
We can ask though, how trademarks and their patent and copyright siblings affect our market economy
Looking back at the American colonies in the 17th century, we would have seen communal ownership among the settlers from English manors where the land and tools were shared. At first, in Sudbury, Massachusetts, together, everyone owned some of the land and most of their tools. Soon though, with people moving westward and claiming their own land, private ownership prevailed.
By the end of the 18th century, we have Alexander Hamilton advocating a patent system that protected invention and propelled economic growth. One result was the first patent law in 1790. But then, and now, we can debate how much we should preserve our ownership of what we create. Illustrating the debate, economist Alex Tabarrok drew this graph:
My sources and more: Focusing on the products themselves, this Insider article and Consumer Reports explained genericization. I also recommend taking a look at the Google case.
