How to Kill a Trademark

How to Kill a Trademark

At first glance, it seems I've devoted too much of the big brain on this netbook (http://en.wikipedia.org/wiki/Netbook) trademark (http://sumocat.blogspot.com/2009/02/save-small-laptops.html) war (http://sumocat.blogspot.com/2009/02/essay-almost-analysis-of-dells.html) relative to my apparent self-interest, and before today I'd agree. But then Dell filed a petition to cancel Psion's trademark (http://ttabvue.uspto.gov/ttabvue/v?pno=92050564&pty=CAN&eno=1). They made three points, two of which are for the courts to decide, but the third can potentially establish a method to kill a trademark.

The third argument is "genericness." Because the trademarked name is widely used as a generic term (http://en.wikipedia.org/wiki/Genericized_trademark), it is no longer protected. It's called "genericide" (http://iplg.com/resources/articles/losing_trademark_rights.html) and it happens quite frequently, as with Band-Aids (http://en.wikipedia.org/wiki/Band-Aid) and Kleenex (http://en.wikipedia.org/wiki/Kleenex). That the name has been genericized is not in dispute. The problem in this case is the genericide was deliberately inflicted by an outside party -- Intel (http://en.wikipedia.org/wiki/Intel_Corporation).

While laptops in what is now the "netbook" category have been around for years, the term was not put into wide use until Intel pushed it in 2008 (http://blogs.intel.com/technology/2008/03/thoughts_on_netbooks.php). They "debuted" the category in February (http://www.bloomberg.com/apps/news?pid=20601103&sid=az8hQRcc_a.c&refer=us) and continued to promote it from there. Some dispute Intel's claim on introducing the term, that it was already in use, but look at the data.

[graph] (http://www.google.com/trends?q=netbook&ctab=0&geo=all&date=all&sort=0)

This graph from Google Trends (http://www.google.com/trends?q=netbook&ctab=0&geo=all&date=all&sort=0) shows almost no activity on the search term until the second quarter of 2008, right after Intel introduced the category. The activity prior to that is almost non-existent, indicative of activity on Psion's netBook, but certainly not enough to indicate wide use of the term.

Furthermore, narrowing my investigation to specific sites, I find no use of the term prior to 2008 on the two mobile tech sites I visit daily, GottaBeMobile.com (http://www.gottabemobile.com/tag/netbook/page/20) and jkOnTheRun (http://jkontherun.com/page/50/?s=netbook). These are esteemed specialty blogs focused on mobile PCs that never used the term before Intel pushed it.

Broadening to general tech blogs, Engadget's (http://www.engadget.com/supersearch/20/?q=netbook+&sort=date) first mention is of Intel's netbook. Gizmodo (http://gizmodo.com/search/netbook/bydate/?refId=260&timerange=all) used the term a few times before then... all in reference to the Psion netBook. It's as if the only netbook before Intel's was Psion's.

So what does this mean? It means "netbook" did not enter generic usage until after Intel appropriated it. This is not a matter of a trademark growing into an eponymous generic. It was a deliberate campaign to genericize another entity's trademarked name.

Think about that. Spend enough money, exert enough influence, and you can kill someone else's trademark? Wield enough power and you can bypass trademark protection? No, genericide is supposed to be self-inflicted, the unintended result of your own success. If it's inflicted by another, it's something else entirely, a loophole that shows how to kill a trademark.
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