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Brand extension

Why trademarks should be honored
February 19, 2013

Mayor Michael Bloomberg of New York City called for a ban on “Styrofoam” containers, saying in his State of the City speech that “with Speaker Quinn and the City Council, we will work to adopt a law banning Styrofoam food packaging from our stores and restaurants. And don’t worry: the doggie bag and the coffee cup will survive just fine.”

Yes, they will. Because they are not made out of Styrofoam.

Bloomberg News dutifully reported the mayor’s proposal without calling it Styrofoam, though the article’s URL certainly did. Bloomberg the news agency said:

The mayor referred to plastic foam by the brand name Styrofoam. Nancy Lamb, a spokeswoman for Styrofoam maker Dow Chemical Co., said the company’s product is used in insulation, though not in cups, trays and food containers.

The New York Times, too, avoided the term “Styrofoam” in its URL or article, except where it, too, noted the difference:

The plastic foam used in food packaging is not actually Styrofoam, according to Dow Chemical, the company that makes Styrofoam. The company says its product is widely used as insulation, but not “in the manufacture of disposable foam products, such as cups, coolers, meat trays and packing peanuts.”

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But its Green blog had no such qualms, linking the word “Styrofoam” to the, um, Bloomberg article.

And dozens of other news reports called the foam food and beverage packaging “Styrofoam”–or, adding insult to trademark, “styrofoam.”

One would think that a mayor so protective of his own company’s proprietary equipment would be more aware of the possible downsides of misusing trademarks. For “Styrofoam” is a trademark. And no foam food container is made of it. Just call them “plastic foam containers,” regardless of the manufacturer.

So what’s the big deal if someone calls something by a name that everyone recognizes, even it refers to the wrong product?

Because doing so causes headaches to the owner of that trademark, and can cause the loss of it. Just ask Bayer, which once had the trademark for Aspirin worldwide. But because everyone started calling similar “miracle” pain killers “aspirin” (and because Bayer, a German company, had its assets seized in the U.S. in World War II), it lost its U.S. trademark. “Aspirin” is still a Bayer trademark in many countries, but not here.

Want more examples? Hand me that “thermos,” please, and make sure your coat “zipper” is pulled up before you put it in the washer at the “laundromat.” All are former trademarks. And because every Tom, Dick, and Noah started publishing Webster’s Dictionaries, even Webster’s, alas, is no longer a trademark by itself.

Many companies fiercely protect their trademarks, because they are so closely associated with the product that imitators are often called by that trademark; many copy machines are called “Xeroxes” regardless of their brand; people ask for a “Kleenex,” even if it’s a Puffs; and lots of “Frisbees” fly around without Wham-O’s imprimatur. Those companies, and more, are most likely to send you a letter from their lawyers if you misuse their trademarks. Not all trash receptacles are Dumpsters, and Not all bridges to airplanes are Jetways, and not all “personal watercraft” are Jet Skis.* (Jet Ski sounds so much better than “personal watercraft,” but regardless …) Trademarks, all.

Trademarks should never be used as verbs, which brings us to … googling. That’s one trademark in serious danger. Google’s website says, “Use the trademark only as an adjective, never as a noun or verb, and never in the plural or possessive form.” Fat chance that we will stop people from”googling” things, especially since Merriam-Webster and The Oxford English Dictionary accept the verb form, as does the American Dialect Society.

Finding out if something is trademarked can be tricky. Two places to look for trademarks are the International Trademark Association, an industry group, and the U.S. Patent Office’s Trademark Electronic Search System. But, strictly speaking, anyone can declare something to be a trademark if it’s not already been so declared, so those searches are not comprehensive. Among the clues are if there’s a logo of the name; or if the company puts “™” after the name, meaning it’s a trademark; or “®,” meaning it’s a registered trademark, giving it greater legal protection.

Journalists do not have to follow odd capitalization or punctuation marks when they use trademarks, and they do not have to put those superscript symbols after them. But as you would want your own copyrights to be honored, it’s a good idea to honor trademarks. On many levels, they’re the same thing.

*UPDATE 02/25/13: As Massey Padgham, a copy editor at the Vancouver Sun, points out, Dumpster is no longer a trademark, at least by itself. The trademark was allowed to expire in 2008. But, proving what happens if a trademark is so associated with the product that it becomes genericized, “Dumpster” lives on in other trademarks, such as My Doggy Dumptser, a pooper scooper; Dumpster Boss, a waste collection service; and Dumpster Diva, whose registration descrbes it as “Repurposing and salvaging of old or discarded items, namely, repairing, refinishing, reupholstering and/or refurbishing of furniture, home and garden decor.” Many people (including this columnist) will have to update their memories.

Merrill Perlman managed copy desks across the newsroom at the New York Times, where she worked for twenty-five years. Follow her on Twitter at @meperl.