![]() The benchmark judgment was handed down in 2000 in Cadbury (Pty) Ltd v Beacon Sweets & Chocolates (Pty) Ltd.Global warming is expected to contribute to many human wrongs: disease, malnutrition, flooding of coastal communities. (1) For example, in South Africa the Supreme Court of Appeal found that LIQUORICE ALLSORTS had become the generic name for a particular liquorice confectionery product. The Spoor & Fisher website can be accessed at Endnotes No matter the size of a company, proper trademark use and enforcement is essential to retaining the value and strength of a brand.įor further information on this topic please contact Jeanine Coetzer at Spoor & Fisher by telephone (+27 ) or email ( ). Online monitoring is another tool that brand owners can employ in their enforcement efforts to retain exclusivity of their trademarks.Įstablishing trademark recognition with consumers and maintaining that distinctiveness in the marketplace requires concerted and consistent effort, as well as strategic planning.Preferred trademark use should be as an adjective, followed by the general or common name of the product or service (eg, PHOTOSHOP photo editing software, GOOGLE search engine, BMW vehicle or NIKE sneakers).A visible method that brand owners can employ in written ads and advertising materials (website and online marketing) is to use the ® symbol (if it is registered) or the ™ symbol (if it is unregistered) to signify that the mark is a proprietary brand.To begin with, brand owners should use their trademarks in a way that emphasises their significance (ie, not in a generic sense) as a way to refer to the type of goods or services offered.But there is a fine line between having your brand be a household name and being just another house.Īstute brand owners should adopt a strict protocol for the consistent proper usage of their trademarks: In general, the objective is for goods or services to become something everyone wants and for their trademark to become a household brand. ![]() When this happens, the mark can no longer serve its distinguishing function and the company runs the risk of its brand name becoming so commonly used that a judge rules it too generic to be a trademark. This 'death by nouning' or 'death by verbing' phenomenon occurs when the public no longer perceives the trademarked term as an indicator of source, but as a description for the class of products or services (eg, GOOGLE, TWEET, PHOTOSHOP and FACETIME). An often strong, distinctive, non-generic and valid trademark enters common parlance and gradually loses its distinctiveness over time to the point where it becomes the common name of the relevant product or service, widely used by consumers and even by competitors. More often than not, genericide takes place in the realm of invented products or a new type of product or service. This is because the essential product, the French fry, already existed, so companies had to apply their trademark to a product already in existence. As such, terms that are deemed generic are not entitled to trademark protection, because they are in the public domain.įor example, consumers have learned to identify types of French fry based on the restaurant that they come from. The law protects trademarks that achieve this by allowing them to be registered and exclusively used by the trademark owner. The basic functions of a trademark are to serve as a badge of origin – or as a source identifier – and distinguish the goods or services of one business from the same or similar goods or services of another business in the course of trade. It is an effective communication tool, with the potential to convey intellectual and emotional attributes and messages about a brand and its reputation, products and services. ![]() Once distinctive trademarks (eg, ASPIRIN, ESCALATOR and THERMOS) have become generic marks (ie, descriptive of the relevant goods or services or generally defining a class of goods or services, rather than identifying the goods or services of a particular trader), this process is known as 'trademark genericide'.Ī trademark is any word, name, sign, symbol, logo, container, shape, pattern or ornamentation, colour or combination of these which traders use to distinguish their products or services from others'. Over the years, many brands have come to realise the adverse consequences of a trademark that is too successful. In this way, ZOOM would lose its distinctiveness and become a generic trademark and its owners would be unable to stop others from using 'zoom' to refer to online conferencing services. ![]() Imagine if 'zoom' became a synonym for conducting online video meetings, regardless of the app used – or worse, became a verb.
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