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December 1, 2011 8:18 AM   Subscribe

Why is a trademark weakened by inclusion of the before the product name?

It seems all the rage these days for companies to refer to their trademarked products without a definite article (see this thread). I get the notion that this is both a trademark protection strategy and a marketing decision. The marketing angle seems clear to me, using the product's name in the fashion that one would use a person's name creates a sort of linguistic construct that causes us to subtly change our relationship to these products, yada yada yada. A bit gross, but I get what's going on there. However, the trademark part of it mystifies me. I keep hearing that attaching a definite article to a product weakens the trademark by making it generic, but that seems very counterintuitive. Wouldn't attaching a definite article make a stronger case that that item is unique?
posted by nonreflectiveobject to Law & Government (5 answers total) 1 user marked this as a favorite
Why is a trademark weakened by inclusion of the before the product name?

I don't think that it is. Having or not having an article may help an unregistered mark achieve consumer recognition faster or more effectively, but once a mark is registered, I cannot think of a reason why the appearance of "The" would help or hurt.

Given the way trademarks handle spelling, phonetics, and other languages, I would assume that the articles are actually ignored for legal purposes.
posted by toomuchpete at 8:48 AM on December 1, 2011

IANATML but I still can't see how you got " 'The' weakens TM defense" from any of the linked information.

I think you might be confusing causality. Once a brand becomes suitably widespread and generic people tend to add an article. Xerox is a perfect example of this. "Hand me the xerox" versus "Our copiers are Xerox". You wouldn't say "Our copiers are The Xerox", you dig?

Or to use Apple/Mac products: "When you're in the office will you bring me the Mac laptop?" versus "My work laptop is a PC, but at home I have nothing but Apple products."
posted by FlamingBore at 8:59 AM on December 1, 2011

I think this comment from the thread you linked makes the most sense:
It's a hardware vs. software thing. Nobody says "I have the Windows" on my computer or "crunch those numbers in the Excel." Bezos wants us to think about the software/marketplace aspect of "Kindle" more than the little plastic thing that displays text.
They want you to think of it as a concept or overall "system" rather than an individual object.

In the Wiki article, they talk about Lego:
...the LEGO Company, which printed in manuals in the 1970s and 1980s a request to customers that they call the company's interlocking plastic building blocks "'LEGO bricks', 'blocks' or 'toys', and not 'LEGOs'."
The idea there is that once you start calling Lego bricks "Legos", you might extend that to other Lego-like bricks and call them "Legos" as well (thus genericising the brand name). On the other hand if the noun is brick instead of "Lego", and you're using Lego as a adjective referring to the brick, then it's less likely you'll refer to a "MegaBlok-brand building brick" as a "Lego brick".

So to use that example with (the) Kindle, if everyone starts referring to all e-readers generically as "kindles", Amazon risk losing the brand name. So they are trying to get people to think of the whole Amazon e-book service (the book/blog/newspaper store, the mobile apps, the iPad app, the Kindle devices themselves) as "Kindle", then instead of people thinking "I use a kindle to read e-books", they will (hopefully) think "I read e-books using Kindle".
posted by EndsOfInvention at 9:01 AM on December 1, 2011

Trademarks are adjectives.

(According to trademark law enforcers, at least. As the Language Log post points out, this is actually kind of nutty.)
posted by neroli at 9:47 AM on December 1, 2011

[IANAL. IANAPL. TINLA. I am not a lawyer, and I am not a Patent Lawyer. This is not Legal Advice, this is just me answering a broad academic question about trademark theory.]

It's a little weird to wrap one's head around, but the opposite of "generic" is not "unique", at least when it comes to trademark law. I think understanding this may help you understand your question about the use of definitive articles and Trademarks.

A trademark, functioning properly, acts as a source identifier in commerce. That is, a consumer is supposed to look at a trademark (say, Tide laundry detergent), and be able to immediately associate the product with its source. ("Oh, this laundry detergent is made by Tide").

There are a few different theories for why we allow trademarks, but generally, we accept that a company gets to enforce its trademarks in order to protect consumers against confusion. It's a little bit non-intuitive- we often think of companies as having a property interest in their trademarks ("protecting their brands"), but really, trademark law was designed for the benefit of the Consumer, and not the Produc. The ultimate goal is to protect you from being tricked into buying some low-quality fake Tide and ruining your clothes. But we accomplish this goal by allowing companies to police their own brands.

What we don't want companies to do, however, is police their brands so strongly that they gum up the market. They can police their brands to protect against consumer confusion, but we don't want them to start interfering with market competition. This is why we don't give trademark protection to generic marks. If a trademark becomes a shorthand for the product itself (and thus stops being a reference to the products source), it is generic, and it is no longer valid. The classic examples are Kleenex and Thermos. Nobody says "hey, can you pass me that insulated drinking container?" they say "hey, can you pass me that Thermos?" instead. The term has become generic.

I think there is a strong, but not absolute, argument that including a definitive article next to your trademark makes it easier for consumers to associate the mark with the product itself, rather than with the source of the product. Not to get all phenomenological , but the use of a definitive article seems to identify an object qua object, whereas the use of an indefinite article seems to identify a type, or genus, to which the object belongs. At least in my mind, "pass me the Kindle" seems to create a stronger association between the trademark (Kindle) and the product (e-reader) than the indefinite form. "Pass me a Kindle" seems to suggest less of a product/mark elision.

But a lot of this is actually just opinion. People have classically stated that trademarks are adjectives, and shouldn't be nouns or verbs. But this isn't totally accurate. Take Google, for instance. Their general counsel, after thoughtful review, apparently decided that the use of Google as a verb ("let me Google that") was not problematic. While the adjective/noun distinction is useful shorthand, (and while the "definitive article/ no definitive article" might also be good shorthand), the more correct question to ask is: does the trademark serve to identify source in commerce, or has it come to identify the product itself? This is the question courts will tend to apply when a trademark is challenged as generic.
posted by HabeasCorpus at 8:42 PM on December 1, 2011

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