Tupperware and the risks of trade mark genericide


The financial woes of the company behind Tupperware have been in the news of late. Those stories have highlighted that, to some people, the word "tupperwear" means any resealable plastic food container, not specifically "Tupperware" branded products.

That's an issue for trade mark lawyers as it can mean that a brand is at risk of "genericide". This is when a brand name becomes the common name for a type of product, such that it no longer functions as a trade mark.

Genericide can be fatal to trade marks. It's not just a hypothetical risk. Words such as "Escalator" and "Trampoline" were once registered trade marks and could only be used to designate goods produced under the authority of the trade mark owners. But they have since become the common place words for any moving staircase or any bouncy exercise thingy. I'm not even sure how you would describe a trampoline without using the word. And that's often the problem. If you invent a whole new type of product, you have to ensure that people know how to describe it generically rather than just by using the trade mark.

This can be counter intuitive. Marketing folks might love it when their company's brand name is so popular that it becomes a synonym for the product. They might even swell with pride when it starts to be used as a verb. For example "hoovering" or "googling". But that's a risky place to be for a trade mark owner.

That's why companies like Alphabet Inc. (Google's owners) take active steps to discourage use of the word "google" as a verb, particularly when used to mean web searching generally. Although Google's popularity is so great that when people take about "googling" they do often mean using Google specifically.

It is the duty of the trade mark owner to educate consumers in that way. In fact, under UK law, for genericide to occur the brand must have become the common name for a product as a consequence of the acts or inactivity of the trade mark owner.  

Trade mark owners must therefore take active steps to police the use of their trade marks and to discourage generic use. For example, the owners of the "Xerox" brand took out advertisements in film industry journals asking film makers not to have their characters talk about "Xeroxing" documents.

That impulse also led to "Don't say Velco", probably the best video about trade mark law that's ever been made. If you haven't seen it, you should Google it (by which I mean use the Google® search engine, to locate it).

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"We use it (Tupperware) as a noun, which is quite unusual for a brand," said Catherine Shuttleworth, founder of retail analysis firm Savvy Marketing. "I think a lot of younger people will be surprised it is a brand in itself."
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