One of the key things to know about trademarks is that they are adjectives and not nouns. This matters because the value of a trademark – and thus a brand – comes from the consumers recognition of a trademark as something that distinguishes your product from others on the market. Knowing this helps designers and brand managers to build a strong trademark for clients.
So for instance, you don’t want to Xerox your papers, you want to use a Xerox copier to make copies of your papers. You can see that the word “Xerox” functions as a verb in the first part of the sentence and as an adjective in the second part of the sentence. The second part of the sentence gets it more right – legally speaking – than the first part of the sentence.
Knowing this proves to be relevant to anyone who is working with a brand or trademark as part of a design or copywriting practice. Although you may not know all of the legal nuance (and this article gets you only about 1% of the way there, sorry), you will be able to bring issues to the attention of your client and therefore bring value to the services that you offer.
What happens if you do it wrong? Things can go sideways relatively quickly. The key case that is used to demonstrate this involves Otis Elevator Company (look down next time you take a ride in a building) who used the word “elevator” as a noun – as in “use an Otis elevator to get from floor to floor!” (paraphrasing here). The thing is that the word “elevator” was registered as a trademark, and because Otis used it as a noun (as opposed to using it as an adjective, to wit: “use the elevator people mover to get from floor to floor!”) the court did not offer protection to the word “elevator” in later litigation.
Typically what happens is that a mark that is used as a noun in advertising and promotional materials is converted into a generic term. This is called genericide, and you want to avoid that. See words like “Kleenex”, “Jell-O” and “Xerox” – all words that started life as a registered trademark, but through misuse were brought to or across the border to genericness.
Understand that brand protection is a process and in order to do it right, you have to enforce how your trademark is used if you want to avoid problems that can reduce your trademark rights.
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