By Tennell Lockett
In nearly every facet of business in the United States, more is better. Companies are usually gunning for more revenue, more profits, more customers, and more market share. In short, the general goal of most companies is total market domination. There is, however, a seemingly quirky aspect of trademark law where that general goal can have devastating consequences. Basically, trademark protection can, for lack of a better term, “flip.” Let me explain more.
When I was growing up, kids spent countless hours at video arcades playing video games. Nearly every game consisted of some form of game-play incorporating a series of levels, which started at level 0 and increased in difficulty and complexity at each subsequent level until the player reached an ultimate level. When the player “beat” the ultimate level, the game was said to “flip” because the game reset to level 0. Anecdotally, video game connoisseurs could flip a game with one quarter.
Trademark protection can also be said to “flip,” under certain circumstances. A hypothetical newly-branded product has very little trademark protection upon introduction to the market. As consumers begin to recognize the product’s mark as a source-identifier, trademark strength increases. As the hypothetical company aggressively markets its branded product and, hypothetically, every consumer in the market associates the company’s branded product with its mark, the strength of the mark reaches its zenith. When the mark and product become so popular in the market, however, that everyone begins to associate the mark with the product (and not the company’s version of the product), then the mark can be said to have “flipped” and all trademark protection for our hypothetical mark is lost.
As our hypothetical emphasizes, traditional notions of total market domination do not mesh nicely with trademark law, at least not as we commonly conceive of market domination. The reason for this dynamic is because trademark law is focused on the consumer, not the proprietor. The federal trademark act, called the Lanham Act, is a consumer protection statute. The statute focuses on preventing consumer confusion, not on rewarding the hard work or protecting the success of businesses.
Keeping in mind the policy objectives of trademark law, trademark law’s “flipping” makes sense. Since trademark law wants to ensure that consumers have clear in their mind that a particular product or service comes from a particular provider (i.e., that the goods or services come from a particular source), then it is perfectly understandable that a source identifier, e.g., a trademark, obtains greater protection as its ability to identify a source of origin increases. The minute, however, a mark serves as an identifier of a product, and not a source identifier, it does not further the policy objectives of trademark law. More specifically, if a mark does not identify to a consumer that a product or service comes from a particular source of origin, the mark cannot convey any number of assurances about a product that a market consumer would want in order to make purchasing decisions. For example, a generic term, such as “computer,” cannot convey any information about the quality, safety, monetary value, resell value, etc. of a particular desktop computing device. Such generic terms cannot provide the consumer protection contemplated by the trademark law and therefore are afforded no trademark protection. This is true even where your mark becomes generic through your own aggressive marketing or because of the popularity of your product in the marketplace.