When a mark becomes a word

A trademark does not only die of neglect or defeat in opposition. It can die of being understood too well. When the public stops hearing a brand and starts hearing the name of the thing itself, thermos for any vacuum flask, escalator for any moving stair, the register can erase the word that got away. The doctrine is called genericide, and it is the quiet counterpart to every entry this bench keeps about marks being entered and marks being misused: this is how one is lost by succeeding too completely.

What the law actually asks

Under Article 58(1)(b) of the European Union Trade Mark Regulation (Regulation (EU) 2017/1001), an EU trade mark can be revoked if, "in consequence of acts or inactivity of the proprietor", it has become the common name in the trade for a product or service for which it is registered. The EUIPO's own examination guidelines frame it as a question about the relevant public's perception: not whether competitors use the word, but whether ordinary buyers and the trade itself have come to treat the sign as the product's name rather than as one firm's mark.

Aspirin: the case that gave the doctrine its textbook example

The clearest illustration remains Bayer's aspirin. Acetylsalicylic acid tablets were sold under the Aspirin trademark from 1899, but United States court rulings in 1918 and 1921 found that, to the buying public, aspirin had become the generic name for the tablet itself rather than a mark pointing to one maker, and they put it down to the company's failure to tie the word to its own product. Consumers were already asking for aspirin the way they asked for bread; the court's ruling recognised a linguistic fact that had already happened rather than creating one. Bayer kept the Aspirin trademark in other countries, including Canada, where it is still recognised and generic tablets are sold as ASA. The case is the standard teaching example precisely because it shows genericide as a loss of distinctiveness in fact, confirmed by a court rather than invented by one.

Escalator: lost by the company's own advertisement

A second American case shows how an owner's own words can do the damage. Otis Elevator Company had registered Escalator as a trademark for its moving staircase, but in 1950 the United States Patent Office cancelled the registration on a petition by the Haughton Elevator Company, and the decision pointed to Otis's own advertisements, which used escalator alongside elevator as a common noun rather than as a brand name. It illustrates the standard a tribunal applies: look at how the mark is actually used, including by its own owner, not at what the registration certificate says it is supposed to mean.

The ordinary defence: capitalise, specify, correct

Owners who want to avoid this fate follow a short, unglamorous routine. The mark is always capitalised and never used as a verb or a plain noun: a company writes "a Kleenex tissue", never "a kleenex". A generic term always follows the mark, so the sign names a brand of a thing rather than the thing itself. Licensees and the press are corrected when they drift into generic phrasing, and style guides are circulated to in house counsel and marketing teams alike. None of this guarantees survival; usage by hundreds of millions of speakers can outrun a single legal department's letters. But Article 58 makes the owner's acts or inactivity, not the dictionary's eventual verdict alone, part of what a tribunal examines, which is why the correction letters keep being sent even when they look futile.

Why the register keeps a place for this

A register that only recorded entries and oppositions would tell half the story. The deed to a mark is not permanent in the way a deed to land is permanent; it is a right conditioned on the sign continuing to do the job a trademark exists to do, pointing to a single commercial source. What opposition means in this journal's earlier entry is the register refusing an intruder before it is let in. Genericide is the mirror image: the register withdrawing a right already granted, because the public, not a competitor, stopped reading the sign as a brand. Between the two sits the whole discipline of trademark maintenance, and the word in the dictionary entry, aspirin, escalator, thermos, is the only monument most owners who lost the fight have left.