Genericness Surveys

A trademark that was once a distinctive brand name may lose its protectable status if it comes to be understood by the relevant public as a common name for a type of product or service, rather than as a designator of a single commercial source. This evolution in consumer perceptions is commonly termed "genericide" and can be contrasted with terms that are generic ab initio – that is, terms that identify a type or product or service and have never primarily served as brand names.

The legal question of genericness is a consumer perception question — it turns on how the public actually understands the term — and consumer surveys can be an excellent, direct method of measuring that understanding. Dr. David Neal has conducted many genericness surveys in trademark cancellation proceedings, opposition proceedings, and federal court litigation across a range of product and service categories.

What Genericness Surveys Measure

Genericness is measured by the extent to which consumers understand a term to be generic—that is, a common name—for a category of goods or services rather than as a brand name identifying goods or services from a single source. These surveys typically seek to quantify the "primary significance" of a term, which may be as a common name or as a brand name. As such, genericness surveys can be used either to establish that a term is primarily generic or that it is primarily a brand.

The Teflon Format

A widely employed survey format for measuring genericness is the Teflon survey format, named after E.I. du Pont de Nemours & Co. v. Herbst, 519 F.2d 1116 (6th Cir. 1975). In a Teflon-format survey, respondents are presented with the term at issue and asked directly whether they consider it to be a brand name — a name that identifies a specific company's product and is used by only one company — or a common name — a word that refers to a general type of product available from more than one company. Respondents are also given the option to indicate that they do not know.

To enhance the reliability and interpretability of the survey, the questionnaire includes training examples using established brand names and established generic terms before presenting the term at issue. This calibration exercise helps ensure that respondents are applying a consistent understanding of the brand name/common name distinction when they respond to the test question. As with other surveys formats, foil terms (i.e., a mix of other common names and brand names) are often included in the survey to eliminate potential biases, such as demand effects.

The Thermos Format

The Thermos survey format, which draws its name from King-Seeley Thermos Co. v. Aladdin Industries, Inc., 321 F.2d 577 (6th Cir. 1963), employs a different approach. Instead of directly prompting respondents to classify the term at issue as a brand name or common name, the Thermos format asks a series of open-ended probes designed to elicit the array of generic terms/common names that relevant consumers spontaneously generate to identify the category at issue. Under this format, people's open-ended answers are coded to quantify the percentage of respondents who provide the term at issue as a generic term for the type of product/service identified.