Patents

When reading articles or promotional copy about certain brands, the extensive use of footnotes plus “®” designations dangling off of words like ornaments on a tree look clunky and can be a real distraction.

But there are important reasons for companies to police and protect their brand equity … because if you spend some time snooping around the English language, you’ll find any number of words that began life as trademarked terms but became “genericized” over time.

Trademark lawyers refer to this progression as “genericide.” And there are a surprising number of high-profile examples they can cite.

Recently, business writer and editor Mary Beth Quirk compiled a list of once-trademarked brand terms that have become victims of genericide, and she published her findings in the Consumerist, an e-zine put out by Consumer Reports.

Among the trade names she highlights that have “gone generic” are these:

Aspirin — Originally registered by German firm Bayer, aspirin’s trademark was confiscated by the U.S. government in the wake of World War I. Considering the massive headache Germany would unleash on the world barely 20 years later, perhaps this aggressive move wasn’t the best course of action!

Dry Ice — Believe it or not, this was actually a trademarked term, dating from 1925. To nearly everyone, it sounds so much better than “solid CO₂.” The clearly preferred “dry ice” descriptor everyone uses is probably why the company lost its trademark by 1932.

Escalator — Registered in 1900 by Otis Elevator, the company lost its trademark when the U.S. Patent & Trademark Office determined that Otis had used it as a descriptive term — even in its own patent applications.

Heroin — This was yet another Bayer trademark. It seems strange that heroin started out life as an actual branded product … but there we are. Presumably, these days Bayer is happy that its company is no longer associated with such a problematic substance.

Laundromat — This term started out as a General Electric trademark back in 1940, issued for the first wall-mounted washing machine. GE failed to renew its registration after the 1950s.

Linoleum — Here’s an example of a brand name that had already entered the generic lexicon before the manufacturing firm even attempted to register it. Coined in the mid-1860s, the company’s efforts to register the flooring name were to fail just a decade later.

Thermos — This trademark was established in the early 1900s as a more pleasing way to describe a “vacuum flask.” After too much loosey-goosey use of the term, the USPTO pronounced it genericized in 1963.

Trampoline — It appears that this term, coined by inventors George Nissen and Larry Griswold in 1936, was never officially registered. The real generic descriptor is “rebound tumbler,” but “trampoline” sounds so much more effective to me. Everyone else seemed to think so, too, leading to its ineligibility for trademark status.

ZIP Code — An acronym for “Zone Improvement System,” the ZIP code began life in the mid-1970s as a service mark of the U.S. Postal Service, but the registration was never renewed. I guess the USPTO chose not to notify its sister agency of the renewal — not their business to do so even among friends and colleagues, evidently.

The next bit of interesting information in Quirk’s article is her listing of brand names that remain trademarked to this day — even though some of them seem to epitomize the essence of generic terminology.

Quirk concurs in the view that these terms may be on life support as proprietary names, noting that they are “trademarks who need to watch their backs” because of how pervasive they are in everyday language usage. Among the terms she cites are these:

Adrenalin® (owned by Park-Davis)
AstroTurf® (Monsanto)
Band-Aid® (Johnson & Johnson)
Bubble Wrap® (Sealed Air)
Crock-Pot® (Sunbeam)
Dumpster® (Dempster Brothers)
Fiberglas® (Owens Corning)
Frisbee® (Wham-O)
Hula Hoop® (Wham-O)
Jet Ski® (Kawasaki)
Kleenex® (Kimberly-Clark)
Lava Lamp® (Mathmos)
Mace® (Mace Security International)
Memory Stick® (Sony
Ping Pong® (Parker Brothers)
Plexiglas® (Rohm & Haas)
Popsicle® (Good Humor-Breyers)
Q-Tips® (Unilever)
Realtor® (National Association of Realtors)
Stetson® (John B. Stetson Company)
Styrofoam® (Dow Chemical)
Taser® (Taser Systems)
Teflon® (DuPont)

Thinking along these lines, do other trade names come to mind that could be in danger of losing their trademark status? If you can think of any, please share your nominations with other readers here.

After reading one too many articles about patent issuance failures on the part of the United States Patent and Trademark Office, I’ve come to the conclusion that the USPTO just isn’t able to keep up with galloping technology.

How else to explain its staff lawyers granting patents for applications they have no business authorizing?

And when that happens, the courts have to step in and fix the problem – as in the recent U.S. Supreme Court case overturning the patents of Myriad Genetics on BRCA1 and BRCA2 human breast cancer genes.

Even worse … through ineptitude, completely obvious ideas get patented, inhibiting innovation and keeping beneficial technology out of the hands of the public – which goes completely counter to the USPTO’s stated aims.

One of the USPTO’s doozies that has made it into the news was issuing a patent for scanning a document and then e-mailing it.

That is correct: the USPTO viewed this simple function as a “unique” invention worthy of patent protection.

… Never mind the fact that thousands of people had already “invented” this idea before – but never in their right minds would they have thought it was patentable!

So what happened after patent protection was granted in this case? The patent is now owned by one of those infamous firms that exists only to sue people and extort money from them. In this case, a company with the deliberately innocuous-sounding and forgettable name of MPHJ.

Today, this firm’s legal counsel is demanding $1,000 in licensing fees from anyone who scans a document and then e-mails it.

At least Hewlett-Packard decided to fight back earlier this year, pointing out that it had been selling printers that could scan and e-mail documents long before the patent in question was ever granted.

But why do we even have to go there? Is it really appropriate for a patent to be granted to someone who didn’t really invent anything … nor create a new technology … nor develop a unique engineering design or manufacturing process?

Patenting ideas for computer-related functions and programs as falling under the general category of “business methods” – a dreadful practice the USPTO started allowing about 20 years ago – is partially how we got into this mess.

The unfortunate part is this: There will be major challenges facing anyone who decides to promote patent reform. Too many “patent trolls” and their partner-in-crime attorneys have a vested interest in a current system which – similar to the cyber-squatting industry – enables them to make a tidy sum for very little effort.

Expect these “upstanding corporate citizens” to obstruct any moves to change the system with the same kind of zeal they employ to go after the citizens and companies who are the hapless targets of their extortion efforts.

In fact, a 2012 study commissioned by the Government Accountability Office found that of ~500 randomly selected patent lawsuits that were filed the previous year, nearly 40% of the cases were brought by “patent monetizers” (trolls). And that doesn’t even begin to account for the untold numbers of threatened suits that were settled without going to court.

But I’m pleased to see that several states have taken up the gauntlet in the MPHJ saga. The attorneys general of Nebraska and Vermont have sent letters to the company and its legal counsel, warning them to leave their state residents alone.

Vermont has even passed legislation allowing victims of patent trolls to countersue. Wouldn’t that be a nice turn of events?

Greed is never pretty – but especially when greed is this transparently obvious. It would be nice if the USPTO started contributing to the solution by making some much-needed changes of its own.