The Genericide of Google?
If you’ve ever referred to any pain relieving drug as an “aspirin,” asked for a Kleenex when seeking any form of handheld tissue, or interchanged the terms “photocopy” with “Xerox,” you have an inkling of the dangers that may result when a product or service becomes so successful that it jeopardizes its own trademark protection. Put differently, there are times when a mark becomes so synonymous with a particular category of products or services that it no longer serves the source-identifying function of a trademark (or service mark).
Now Google is seeking to escape the fate of “genericide” at the hands of a panel of the Ninth Circuit, fighting off claims that its mark has become generic (a defense raised by an individual who had registered 763 domain names that combined “google” with other words and phrases, such as googlemexicocity.com, googlesexting.com and googledonaldtrump.com).
The fact that Google won below, coupled with sympathetic questioning from the panel, suggests that it may prevail – for now. But the point remains that diligence is key when it comes to policing unauthorized usage of trademarked terms.