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What Proves That a Mark Has Become Generic?
Generic names for goods and services may not be registered as trademarks under the Lanham Act, and registered marks that have become the generic name for the goods or services may be cancelled at any time (15 U.S.C. '14(3)). Words that were originally trademarks designating the source for particular products, such as 'escalator' and 'thermos,' have lost that status and become the generic name for all such products. Companies whose marks are in danger of losing their distinctiveness as source indicators may take steps to raise the public's consciousness and prevent their marks from becoming generic. One such well-known advertising campaign is run by Xerox Corporation to educate the public to use a 'photocopying machine' or 'to photocopy' in place of the registered trademark XEROX.
The 'M4' Weapon
A generic term answers the question 'What are you?', while a trademark answers the question 'Where do you come from?' McCarthy on Trademarks and Unfair Competition '12:1 (2007). The recent decision by the U.S. Court of Appeals for the First Circuit in Colt Defense LLC v. Bushmaster Firearms, Inc., 82 USPQ2d 1759 (1st Cir. 5/18/07) answers the question 'What proof is necessary to show that a mark has become generic?'
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