We recently had a heated discussion here in the office about trade marks becoming generic.

It all started with a toasted sandwich. Innocently enough, someone in the office mentioned that they were having jaffles for lunch.

The conversation which followed was fuelled by passion, with some supporting the name jaffle and others insisting they were called brevilles. But there’s more at play here than just what you call your toasties.

The original Jaffle brand ‘Jaffle Iron’ was designed by Dr Earnest Smithers 1949 (Australian Design Office registered Number 27089). Our office doesn’t have a Jaffle iron in the kitchen, though; we have a Russel Hobbs sandwich press, so we can’t really have jaffles for lunch.

Above: a newspaper advertisement for the Jaffle toaster. Source: Australian food history timeline.

So calling a regular toasted sandwich a jaffle is like saying you’re going to do the hoovering when you’re using a Dyson.

Many brands have had their trade marks appropriated by culture, but few have been as proactive as Xerox in fighting back to make sure they stay distinctive. As early as the 1970s, Xerox launched campaigns aimed at reminding customers that not every copier is a Xerox, with slogans like if you use 'Xerox' like you use 'zipper' we could be left wide open.

Generally speaking, there are two ways trade marks might become generic. In cases like Xerox and Esky, people simply began to refer to all copiers and insulated storage as the specific trade marks. Alternatively, there are cases where the trade mark ‘becomes a noun’ which is what Google recently went to court to defend against.

It can be a fine line between market share and market dominance. A fine line between your trade mark becoming a household name and becoming generic. That fine line continues when a trade mark is on its way to becoming a noun, as in the case of Google. Can you imagine saying ‘Bing it’ or ‘I’ll just Yahoo that’?

At the simplest level, if a trade mark comes to define a product, instead of identifying origin, that trade mark loses its value. And for brand savvy companies that could be a considerable investment wasted.

In some jurisdictions (such as the US), if a trade mark is proven to have become generic it can even lose its status as a registered trade mark. It is this loss of value where the term genericide come from. Luckily for Google, given their market share, it’s likely that most people who are ‘googling it’ are actually using Google to do so.

So what do you call your toasted sandwiches? Can you think of any other trade marks which have suffered from genericide? Join the conversation and tweet us at @ipaustralia

8 November 2017