Publishing/Writing: Insights, News, Intrigue

05/09/2011

Publishers, Do You Know What ‘Genericide’ Is?


A publisher’s or writer’s (and writers are their own publishers today) brand is their trademark. Yes, as we become better known for our works we are identified with a certain brand…of genre, style, savoir faire, etc.

Once we begin to establish a unique and certain writer’s personality (our own brand, so to speak)…how do we keep it from becoming too generic…or suffering from ‘genericide’?

I bring this topic up tonight because Apple is fighting with Amazon on exclusive trademark rights to APP STORE, a software application store.

“… it may be a good reminder to trademark owners to formulate a strategy for avoiding the worst fate to befall a trademark…genericide. Yes, it is actually as deadly as it sounds. Genericide occurs when a trademark becomes generic, meaning it is no longer an indicator of the source of a particular product or service, but rather, has become synonymous with its general class.”  Linda M. Norcross of Lewis and Roca Law Firm LLP.

I feel all app developers, no matter who they write apps for, should keep their apps well trademarked to identify their own unique work…AND, those who use (buy) their apps (e.g. Apple, Amazon, etc) should provide for this accommodation. 

Details from Linda M. Norcross of Lewis and Roca Law Firm LLP: 

Genericide – let’s hope it’s not contagious

As Apple fights with Amazon.com to assert exclusive trademark rights in APP STORE for, ahem, a software application store, it may be a good reminder to trademark owners to formulate a strategy for avoiding the worst fate to befall a trademark…genericide. Yes, it is actually as deadly as it sounds. Genericide occurs when a trademark becomes generic, meaning it is no longer an indicator of the source of a particular product or service, but rather, has become synonymous with its general class.    

Trademarks function as indicators of source. In other words, they identify the source from which a product or service originates so that consumers will be able to distinguish a trademark owner’s products and services from another’s, and come to expect a certain level of quality from that product or service. For example, no matter where you purchase a McDonald’s cheeseburger, you can anticipate exactly how it is supposed to look and taste, and it’s not the same as a cheeseburger from Burger King. That’s how a business’ reputation for quality, or its “goodwill” is established.

There are four levels of distinctiveness that fall along a spectrum of trademark strength. The first level, comprising the strongest trademarks are fanciful, or coined terms. Fanciful trademarks have no meaning until they become associated with a product, such as PEPSI cola or XEROX photocopiers. The second strongest is an arbitrary trademark, which is composed of a word that exists, but is then associated with a completely unrelated product or service, like APPLE (how ironic) for computers, or DELTA for an airline. The third strongest is the suggestive trademark, which requires the consumer to use his or her imagination to appreciate the relevance of the trademark in conjunction with the product or service it identifies. COPPERTONE, for example, doesn’t come right out and tell the consumer that the corresponding product is tanning lotion. Finally, descriptive trademarks are the least strong of the four trademark types. In fact, descriptive trademarks are not considered distinctive from the get go, as is the case with the first three trademark types, rather, but they can become distinctive in the minds of the relevant consumer over time, or based on a combination of factors including advertising dollars and unsolicited publicity. TV GUIDE and FROSTED MINI WHEATS are descriptive, because the identify a quality, characteristic, feature or function of the product being offered.

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11/02/2010

A Facebook Draped in Risqué ‘ity’


After just getting over Halloween with all the ghosts, ghouls and witches…a little fun post tonight.

It seems Facebook is at odds with a site called Faceporn over trademark infringement. How about that? Not surprising…but this infringement suit brings up some interesting, if not down-right funny (and some sad), aspects of the FB site.

This from Violet Blue posting on Tech Broiler, a ZDNet.com blog:

Facebook and adult social networking: A dream that’s all wet

How many times have you been stuck in the rat’s maze of Facebook profile settings and thought, “This is such a turn-on. I can’t believe that no one has made a porn version of Facebook, because surely this pleasure must be taken to the next level”?

Many times, we’re sure. As it happens, you’re not alone.

One website, Faceporn (Faceporn.com), decided that the constant stress of agonizing over personal privacy in social networks was going to be the next “Behind The Green Door” for our generations. Billing itself as “the number one socializing porn and sex network,” the site aimed to create an X-rated social network, taking the literal “face book” concept to one of “face porn” which actually sounds a lot less appealing. They launched in April 2009.

Unfortunately for them, and everyone else with a Facebook fetish, Facebook did not like this very much. Two weeks ago, Facebook filed suit against Faceporn at U.S. District Court in Northern California, claiming trademark infringement.

In Facebook’s court filing, the company stated that Faceporn “blatantly copied the Facebook logo, site and Wall trademark” while showing screenshots that exemplified Faceporn’s blue-and-white color palette, Wall-style postings, and where users could send a “flirt” — even though in this instance, you would think a “poke” would be more appropriate.

Faceporn, in their second Tweet ever, made a tiny peep on October 20 saying, “Forced to close down for a while, due to unforeseen circumstances. We’ll be back though. Better than ever!”

In the meantime, Facebook wants the court to order Faceporn to turn over the domain and all of Faceporn’s revenue. As many people know, Facebook has not hesitated in the past to take action over what it deems as potentially violating Facebook’s trademark and intellectual property.

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