You may have noticed the video “Don’t Say Velcro” trending on your social media platforms this week. The video, produced by Velcro® Brand’s legal team, is a hilarious look into an extremely serious problem faced by trademark owners.
Here is the video link (Possibly NSFW):
Even though this video was entertaining, it may be the classic example of “too little, too late.”
Most people would think that your trademark being a part of everyday speech is a great thing. However, from an intellectual property protection standpoint, this is far from the truth. As one of the top comments on Velcro® Brand’s video proclaims, “I didn’t even know Velcro [® Brand] was an actual brand till now.” This is not what a company’s legal department wants to hear. When the public so widely uses a brand as a catchall term to describe all similar types of products, rather than by the specific brand name, it creates a legal issue. Namely, does the company who created the brand still have the exclusive right to use that term? If not, the brand is a fatality of trademark genericide.
Companies have spent fortunes attempting to get the public to use alternative terms when referring to a specific type of product rather than their brand. While this seems counter-intuitive, it is one of the only tools available to these companies attempting to save their brands from genericide.
When your child gets a cut on the playground, do you think “oh, I’ll get the bandages”… not likely. How about when you decide to pick up street hockey, would you go to the store looking for “in-line skates.” Or what about that summer cold? Do you really think, “geeze, I need to pick up some facial tissues.” What about when your lips are dry and cracked, do you think “dang, I need some skin protectant moisturizer.” And when you buy your child those totally awesome light-up sneakers, but they still can’t tie their shoes – do you really think, “I’ll just grab the ‘hook and loop’ version?”
As you read the above examples, I am sure you are replacing the descriptive product terms with one’s far more familiar and common in everyday speech. This is the battle these enormously successful companies are facing. How do you change the common vernacular of the society that almost inextricably links your brand to all similar products?
Unfortunately, there is no easy answer to the problem. If there were, the coffers of major companies would be much larger. One of the best strategies is to couple your brand name with other signifiers such as “Brand”. Also, it is helpful to include a generic term underneath your trademark on your product packaging/advertisements (bandages, facial tissues, skin protectant). While new trademark owners may not be concerned with their brand becoming too popular, remember neither did some of these giant companies when they first started.
In the end, the possibility of genericide is not an issue for most brands. However, there is always a distant chance that the hard work and reputation of your brand name can be diminished if you do not properly police the public’s use of your trademark. Whether Velcro® Brand’s efforts will be successful is hard to say – but we wish them the best of luck and thank them for such a great video.
ANTHONY BUCHTA JR. is an Associate Trademark Attorney at LegalForce RAPC Worldwide. He holds a Juris Doctor degree with a Certificate in Law, Science and Technology from the Sandra Day O’Connor College of Law at Arizona State University. He attended Northern Arizona University for his undergraduate studies, earning a B.S. in History with minors in Political Science and Criminal Justice & Criminology. Anthony is an avid Sun Devil Football fan who enjoys playing the guitar and saxophone. He is admitted to practice law in Minnesota.