The issue of trademarks came into the spotlight recently when King, the company behind Candy Crush Saga, took action (to put it lightly) to protect their trademarks in the words “candy” and “saga.” (Likely in reaction to the tremendous industry backlash, King has since abandoned its trademark in the word “candy” and has “amicably” resolved its disputes with both Stoic and CandySwipe, and we consumers may once again swipe candies and enjoy banner-related sagas.)
This recent trademark hulabaloo had a lot of people asking how King was even able to register trademarks on common English words like “candy” and “saga.” Meanwhile, Google has filed an application for a trademark in the word “glass,” and people have been asking for years how Apple can possibly have an official trademark on a word as common as “apple.”
What’s In a (Trade)Name?
First, it’s important to establish what exactly a trademark is, and what the government’s purpose is in protecting them. Of the four broad swaths of intellectual property law (copyrights, patents, trademarks, and trade secrets), trademarks are unique in that their purpose is ostensibly to protect the consumer, not the holder of the trademark (at least, not directly).
Unlike copyrights (which are meant to protect the rights of authors of creative works) and patents (which are meant to protect the rights of inventors), trademarks are meant to protect those of us in the public who want to go out into the market and buy things. When we prospective consumers go out into the world, we make our purchasing decisions based on a number of criteria, some objective (price, specifications, features/capabilities) and some subjective (aesthetics, status/cachet). The criterion that often holds the most sway for buyers is finding out who exactly is selling a particular product, as it can often encapsulate a lot of information about a product: its design philosophy, its manufacturing quality, its approximate price point, and so on.
This is why the law has an interest in making sure that a buyer can adequately tell who is selling a product; otherwise, if we were to let anyone slap any old label/name (like, say, someone else’s name) on a product and put it on the open market, it could lead to all kinds of shenanigans. Consider the following example:
Company A has been selling widgets for many years and has an awesome reputation for the quality of its widgets. Company B wants to start selling widgets too, but it’s just starting out and has no marketing budget to speak of. Company B decides it would be a great “guerrilla marketing” idea to start selling their widgets as “Company A’s Widgets,” hoping to capitalize on Company A’s reputation for quality widgets. Obviously this is a bit shady of Company B, as the only reason Company B would do this is in the hopes that people will buy Company B widgets thinking that they were actually widgets from Company A.
If Company B is allowed to get away with this, both the consumer and Company A potentially have a lot to lose: 1) if Company B’s widgets are of inferior quality compared to Company A’s widgets, then customers who buy these craptastic Company B widgets thinking they’re Company A widgets will be disappointed because they have a certain expectation of what they’ll get when they buy a Company A widget, and 2) Company A’s reputation for its kickass widgets will suffer the longer these Company B widgets are out there purporting to be Company A widgets.
Trademarks exist to prevent this kind of situation. Company A should have a trademark in “Company A,” and this trademark would allow Company A to prevent any other company from selling widgets with their name on it. Company A’s reputation remains the bee’s knees, consumers get what they expect when they buy a widget that has the Company A name on it, and everyone is happy (except for Company B I guess, but they kinda seemed like douchebags anyway).
Apples and Apple-Branded Apples
That’s the basic rationale behind why trademarks are a thing. And this makes a certain amount of intuitive sense, when it comes to the more esoteric, made-up names for things (like Xerox, Kleenex, or Oreo) – if someone else started using those names on their own products, it would be pretty obvious what they were trying to accomplish, and it makes sense that there should be a way to prevent people from using those labels to market their own products.
The next question people usually have is how companies are able to file trademarks on seemingly common English words like Apple, Candy, or Glass. Well, it’s important to note that the reality of those kinds of trademarks is a little more complicated than simply saying “they can stop any of us from (or charge us money for) using these regular English words!”
First, as explained above, the intent isn’t to completely prevent you from using these trademarked words – rather, a registered trademark simply allows the trademark holder to prevent you from using the trademarked words to sell a competing product. So you won’t be sued for trademark infringement just for using trademarked words in everyday speech or anything like that, but where you start to get into trouble is if you’re trying to use those trademarks to sell your own product, and your use of those trademarks might make someone think your products are actually someone else’s.
Second, trademarks are limited in scope. Apple’s trademark on the word “Apple” doesn’t prevent everyone else from selling any products at all with an “Apple” name – otherwise the apple orchard industry probably would’ve collapsed by now. No, Apple’s trademark only prevents everyone else from selling Apple-branded products that would potentially compete with Apple’s products, which at the moment consists primarily of computers, smartphones, tablets, and the software associated with those products. (The USPTO has an extensive list of classifications of products/services.) So, while Apple might have a reputation as being fairly litigious, they’re not going to be winning any trademark infringement lawsuits against products that are completely out of the scope of personal electronic devices just for being branded “Apple” products (like Apple Brand Rain & Stain Repellent).
Googling, Xeroxing, and Kleenexes
King was getting quite a bit of flak from the media for their actions against CandySwipe and others in their quest to defend their trademark on “Candy” from any who might misuse it. And while their methods certainly weren’t optimal from a PR standpoint, on some level, as a trademark holder King had a duty to take some action towards defending their trademarks from things that could potentially infringe or weaken that trademark. If they didn’t, down the line King would’ve run the risk of encountering the argument that “well, these people were using ‘Candy’ like crazy and you didn’t do anything, so you can’t assert your trademark against us to get us to stop using ‘Candy’ either.”
One of the ways that a trademark can lose its power is by becoming genericised. In one sense, having a trademark that becomes genericised is a rather good problem to have – it only happens when the product/service attached to the trademark has become so incredibly popular that people now generally associate that trademark with the product/service as a whole. There are a bunch of common examples of this that many people are probably already aware of: Band-Aid, Kleenex, and Xerox are all frequently used to describe the product generally (adhesive bandage, facial tissue, and photocopiers, respectively).
One sign of impending genericization is when a trademark starts to be used as a verb: “Google” is now commonly used as a verb for web searching (nobody is “altavista’ing” or “binging” anything these days), “Xerox” for making a photocopy, “Photoshop” for editing a digital image, etc.
Companies often work very hard to fight this kind of dilution of their trademarks. Google actively discourages the use of “googling” as a synonym for web searching, and Xerox went on an extensive advertising campaign just to let people know that “xeroxing” shouldn’t be used as a stand-in for “photocopying.” In these two instances, the companies’ efforts were somewhat successful in that their trademarks still retain some level of protection; however, in a more general sense it is hard to say that they were wholly successful, as people still commonly use both words as verbs. Other times, companies can yell and scream all they want about the proper use of their trademarks, and they still end up becoming genericised terms: everyone knows the (previously trademarked) word “trampoline,” but you’re likely to get nothing but blank stares if you ever tried to use the term “rebound tumbler” instead.
Nintendo came close to losing its trademark on “Nintendo” when the NES dominated the market in the 1980s and the term “Nintendo” began to be used to refer to game consoles generally. If your parents are anything like mine, they probably called every game console since the mid-80s “a Nintendo.” (It’s a useful thing to keep in mind, just in case.) Just as Xerox did with photocopiers, Nintendo made a great effort to promote use of the more generic term “game console,” and when it came to people of my parents’ generation, Nintendo’s efforts had about as much success as Xerox’s had.
Pictured above: Three Nintendos. Source: My mother.
In this way, trademark protection is much less “solid” than patents or copyrights. When a patent on an invention is issued, it lasts 20 years. A copyright on a creative work lasts for the author’s life plus 70 years. While patents and copyrights generally are only invalidated by a court, trademarks can lose their protection gradually, just by becoming a term used in popular culture. That’s why companies will sometimes make a big deal out of protecting their trademarks – because if they don’t, there’s a good chance they might eventually lose the trademark completely.
Now if you’ll excuse me, I have to go google how to photoshop a band-aid onto this trampoline.