Legal Information, School

Genericide: The Death of a Trademark

I thought we could talk about something a little fun today as I do my last minute preparations for my property final tomorrow. So let’s talk about genericide.

Genericide is the epitome of too much of a good thing. It’s marked by when a trademark becomes so popular that it becomes a term for anything generally of the same kind. Kind of a wonky definition, so let me give some examples.

What do you call “flavored and colored water frozen on a stick?” Well, that’s a popsicle, of course. But it may or may not be a POPSICLE®. Popsicle is trademarked by Unilever and not a generic word for these treats. Using Popsicle to market your product isn’t great move, it’s kind of like saying: “Come to our bulk store that’s exactly like Costco!” Sounds not so great, huh?

Popsicle® | Popsicle® Firecracker® Multi-Pack

Let’s tackle some more examples, shall we?

No, that’s not a frisbee, that’s a flying disk. It was originally made by a company named Wham-O.
Lip balm, not Chapstick.
Bubble wrap was the name coined by the Sealed Air Corporation for the little air-sealed plastic packaging spheres.
You didn’t really think this was a Q-tip, did you?

So is it a good thing when brands reach this level of notoriety?

Not really, no. It starts messing with their ability to use their trademark. If a court rules that it’s a generic term all companies that make that product can use your name. That’s disastrous for a company.

Some brands adamantly fight against genericide to the point where they can maintain their trademark. Google, for example, has managing to maintain it’s trademark despite everyone using the term google as a verb.

Other brands are not so lucky. In Haughton Elevator Co. v. Seeberger, Charles Seeberger, the man who may or may not have brought you the term escalator, assigned the trademark to the Otis Elevator Company. Another escalator company sued, claiming it was a generic term and won.

But get this – the court discovered that Seeberger had used the word escalator in a generic way himself by writing patents that used the word escalator to describe the products. Whoops.

And that is why we call those moving stairs escalators.

I challenge you to look around the house and at products at the store. You’ll be shocked at how many cases of genericide lie right in front of you. The little words you don’t even think about represented strong brands that may or may not have survived their linguistic deaths. It’s a bit crazy to think about – might need to take an aspirin.

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Legal Information, Project 3, School

Music Sampling and Fair Use: When Is It Infringement?

Disclaimer: This is not legal advice and while I may try to generalize areas of the law, I am still a law student and am learning so I may make mistakes. Please do research of your own if you believe you may have a claim for copyright infringement.

Have you ever wondered where the line is drawn for music sampling and copyright infringement in the music industry? Why is Drake sampling Lauryn Hill sampling the Wu Tang Clan sampling Gladys Knight and the Pips not causing an uproar? It can’t just be because Nice for What is a summer hit, can it? How can John Fogerty get sued for copyright infringement of a John Fogerty song?

Of course it’s a little messy, but with my most recent legal writing case being about this very topic, I thought I’d take the opportunity to dive in a little deeper because it’s just genuinely interesting.

It’s pretty easy for someone to claim copyright infringement. It requires a valid copyright and proof that one of your copyright rights were infringed. The purpose of a copyright is to give the creator exclusive rights to the work. That means if someone else wants to use it or reproduce it, etc. they need permission.

So the original creator has brought the case to court, is that it? Do the alleged infringers just lose? Why wouldn’t they get permission?

All hope is not lost for the alleged infringers quite yet. If they can prove that their use was fair use, they’ve asserted an affirmative defense. Think of an affirmative defense as: “Yes, I infringed on your copyright, but I had permission to under fair use.” You’re affirming that you’ve done the thing, but you’re making it a defense, hence affirmative defense.

Fair Use is codified under 17 U.S. Code §107. Courts use four factors to determine whether a work infringed:

  • Purpose and Character of the Work: Is your use of the sample transformative? If you can prove transformation, courts look favorably upon a sample being used for fair use. A mere reproduction of a sample may be viewed as the same character of the original song.
  • Nature of the Work: Does your new song evoke the same essence as the original? In 2018, the Ninth District Court of Appeals ruled on whether Robin Thicke’s Blurred Lines infringed on Marvin Gaye’s Got to Give It Up. The moods of the two songs feel remarkably similar, yet how much was actually copied? The court found Pharell and Robin Thicke to be guilty of copyright infringement as they claimed the song as inspiration.
  • Amount and Substantially of the Portion Used: How much of the song are you using to sample? Just one instrument? The entire beat? The more that’s used, the less justifiable. Some courts take a “not more than necessary” approach, where using only what’s needed is preferable.
  • The Market Effect: Does your copyrighted sample harm the market of the original piece? Would your work be a completely separate audience?

Since these are factors, they are all weighed in relation to each other to determine if infringement has occurred. Nothing is cut and dry and everything is done on a case by case basis. That being said, to avoid infringement licensing a sample is always preferable.