Many trademarks – among them, ‘escalator,’ ‘pilates,’ and ‘netbook’, to name a few – have suffered the fate of being deemed “generic,” often in the context of trademark disputes. In those cases, what may have once been words or phrases capable of identifying the source of a product or otherwise uniquely identifying the product in the marketplace have been found to describe an entire category of products, such that competitors would be harmed by one company’s continued monopolization of the term. Ironically, in many cases, such “genericide” follows on the heels of significant commercial success for the products or services associated with the mark, making the loss of branding rights particularly troublesome for long-term business goals.

However, on November 30, 2010, the Trademark Trial and Appeal Board ruled that the THUMBDRIVE® trademark was not generic, leaving it eligible for registration with the U.S. Patent and Trademark Office. In reviewing the application filed by Trek 2000 International, Ltd., a USPTO examining attorney earlier had determined that “thumb drive” had come to describe an entire category of computer-related hardware devices, making it ineligible for registration with the USPTO. However, after Trek disputed that decision, the TTAB disagreed, finding that Trek had actively policed its mark and had taken steps to ensure that third parties recognized the mark as a Trek brand, rather than as a common term.

THUMBDRIVE® easily could have gone the way of other trademarks that eventually became “genericized” through inadequate or non-existent policing efforts. Especially in the Internet Age, language tends to evolve at a faster rate than it did in the past, meaning that trademark owners must be more vigilant against unauthorized or inaccurate uses of their marks, in order for those marks to maintain their value. Businesses working to develop brand awareness for their products and to protect their trademarks against unauthorized uses should work closely with knowledgeable IP counsel to implement a holistic policing and enforcement program. The more a trademark owner is able to demonstrate its exclusive use of a mark, the better its chances will be of defending that mark, either in the context of administrative registration efforts or in the context of third-party disputes.