There’s a lot of talk out there of “owning your brand.” When we talk about IP law, we talk about how IP owners have a “stake” in their work. Patent and copyright owners created their works so they own them. Simple enough, right? But when we talk about trademarks, things get a little fuzzy. Yes, trademark owners have a stake in their marks because they created the marks, and usually, have some sort of interest in the company represented by their marks. But unlike a patent protecting a machine or process or drug, or a copyright protecting a script, novel or song, a trademark doesn’t really protect a tangible thing (yes, it does protect the actual visual mark or jingle or tag-line which can also have copyright protection as well, but it also protects so much more which is something we can’t touch or see.). Trademark law, at its core, really protects the association – in the minds of consumers – of a brand with a product. Trademark law protects brands. But who owns that? The trademark owner owns the mark that protects the brand, but the consumers define the brand. But sometimes, much to the trademark owner’s dismay, the consumer can end up owning the “brand” instead. Where is this concept most evident? When a product loses trademark protection because it has become generic. I like to think about genericide as what happens when a company is too successful for its own good. The company has been so successful at getting its product into the consumer’s mind that the consumer associates the brand name solely with the product, and the brand name then becomes the name of the product. Some examples: aspirin, cellophane, and thermos. These were all brand names that lost protection because they became generic. Xerox and Kleenex are examples of brands that have been fighting the genericide battle for a very long time, both investing in campaigns stressing that people use the brand names as adjectives (“Xerox machine”, “Kleenex tissue”) and not as verbs or nouns (“I’m going to Xerox some documents”; “Pass me a Kleenex”). So who owns your brand? It’s a fine line to walk: you want to have a readily identifiable brand name in a category (heck, you want to be #1 in that category), but you don’t want to become that category.  Thus, own the brand, not the category. In the end, let your consumers define your brand, but you should always own it.

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