Wednesday, June 25, 2008

it isn't Styrofoam®

Foamcup A column in today's Baltimore Sun explains that the crisp white stuff that hot-drink cups are made of and that seems to never disintegrate is not "Styrofoam®," but rather is some funny substance called polystyrene. Who knew? It's like Xerox®  and Kleenex® all over again. What's next? Bluebooking?


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As a legal-writing professor who is also an old IP attorney, I must comment:

Generally speaking, trademarks should be used as adjectives, not nouns. That tissue may be a Kleenex tissue, and that copy might be a Xerox copy. When we, the public, started calling a tissue a kleenex and a copy a xerox, the trademarks starting becoming generic. Once a word becomes generic, it no longer functions as a trademark, and the trademark registration can be cancelled.

There are many famous examples of generic words that used to be trademarks--aspirin, celophane, yo-yo, escalator--and there are many trademarks that have become generic, but haven't been cancelled, yet. In my opinion, coke, band-aid, and kleenex are just a few of these.

So, advise your clients to use their trademarks as adjectives, not nouns. If you'll notice, the trademark owners themselves always refer to Kleenex brand tissues or Band-Aid brand bandages.

Posted by: H. Dennis Kelly | Jun 26, 2008 1:03:37 PM

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