Trademarks serve as identifiers for brands. They may be a word, a phrase, or a symbol. Sometimes, even packaging can be trademarked, such as the shape of the old-style Coca-Cola glass bottle. Trademarks are covered under the Lanham Act, which replaced earlier laws that were in effect since the 1800s. Before this, trademarks were covered under English and American common law (which still can protect trademarks, in some cases). This protected against unfair competition, primarily from counterfeit goods.
Many of the most iconic trademarks in the United States are the names of food products. You may already know that generic terms cannot be trademarked. For example, you cannot trademark the term sandwich. Likewise, you cannot trademark the term hamburger. Amazingly, the term cheeseburger is a trademarked term!
It may surprise you to know that many of the food terms that we use generically are, or once were, trademarked terms. For example, we use the term TV dinner to refer to almost any pre-made frozen meal. However, TV Dinner is a trademarked term by Swanson, the maker of the first frozen meals. Another example is how in some parts of the South, Coca-Cola or Coke is used generically to refer to any soda.
If a trademarked food name becomes used generically because of widespread popular use, a company can lose its trademark protection.This process of a trademark becoming generally recognized to represent a particular type of product, rather than the specific company’s product that the trademark emanated from, has been called genericide. Some notable examples are the terms shredded wheat and thermos.
🍰 The “Cake Case”: The Bundt name for the fluted donut-shaped cake pan is a rare survivor among such cases. While the courts ruled that anyone can bake a “Bundt cake,” the name remains a protected trademark for the pans.
Why Nordic Ware Still Owns the Bundt Name.
Shredded Wheat Trademark Battle
Shredded wheat may seem like a term that was generic from the beginning. However, when The National Biscuit Company, now Nabisco, trademarked the term to describe its pillow-shaped biscuits of “shredded wheat”, it had no competition. There was no other product like it at the time since the process of manufacturing the cereal was covered by patents.
Once the patents expired, Kellogg’s started making its own version of wheat-biscuit cereal and began using shredded wheat to describe it. By the time National Biscuit Company filed suit against Kellogg’s, the term was in such general use that the company could not prove that the public primarily associated the name with its product, rather than with any such product.
Therefore, National Biscuit lost its trademark protection for shredded wheat. It is questionable whether the term would have been deemed generic if it had been questioned from the outset.
Fish-Fri: A landmark case proving that a trademark can be protected in one specific region (New Orleans) while remaining generic elsewhere.
Read about the Zatarain’s Fish-Fri vs. Chick-Fri battle.
The Slushie Trademark Crisis
The word “Slushie” (with the ‘ie’ spelling) is a perfect modern case study in genericide. It was actually a registered trademark of 7-Eleven starting in 1994, used to market the company’s licensed frozen drink technology to other convenience stores.
However, the trademark was cancelled in 2006. Today, while “The Original Slushie Company” remains an active brand, the word has fallen into the public domain. This legal shift is exactly why you see “Slushie” signs on everything from high-tech Frozen Carbonated Beverage (FCB) machines to cheap, uncarbonated “slurry” dispensers that rely on glycerol to stay soft. Because the name lost its protection, the consumer can no longer assume the quality of the drink based on the name alone.
If you are confused about the difference between the 7-Eleven Slurpee vs. ICEE and other frozen drinks like the Slushie and Slush Puppie, I’ve got your covered.
Thermos Trademark
The case of Thermos was a bit different. We know a thermos, today, as any insulted bottle used to keep beverages warm or cold. The term has also extended to other related insulated containers used to keep foods warm.
Originally, the term thermos was a completely made-up name to refer to the insulated bottles made by the King-Seeley Thermos Co., taken from the Greek word therme for hot. The generic names for such bottles were names like vacuum-insulated bottles, vacuum flasks, etc.
When Aladdin Industries announced its intentions to call its vacuum-insulated bottles “thermos bottles”, King-Seeley filed suit against this infringement on their trademark. The court held that thermos had become a generic descriptive word in the English language, and was a well-established synonym for “vacuum-insulated container”.
The difference between this case and the shredded wheat case is that the court held that King-Seeley had pretty much brought this upon themselves because they had for years generically used the term.
They used the term thermos bottle in a way that was descriptive of the product, rather than its origin. They did not include any of the generic terms then in use as additional descriptors. Although the company did try to police other manufacturers from using the term thermos in a descriptive sense, it did not become aware of the many generic uses of the term in publications and other places.
Basically, the company had failed to identify Thermos as a trademarked term to the general public, causing it to fall into general use, and resulting in the company failing to protect its trademark when competition from Aladdin arose.
Victim of Your Own Success?
The above cases of genericide could be seen as the companies being victims of their own successes. Being the first one to make or successfully market a product on a large enough scale that your trademarked name becomes a generic term might seem inevitable.
However, it is a lack of foresight, as well. A company must be very careful to prevent such genericide of its own use of the term and in policing its use by other companies.
🍺Deep Dive: The “Lite” Beer Legal Backfire: Miller Brewing Company famously tried to own the word “Lite” by arguing it was a unique brand name. Instead of winning, they proved that you can’t trademark a common misspelling.
Read the full story on why no one owns the “Lite” beer trademark.
Trademark Vigilance: Why “Coke” Survived the South
While many brands become victims of their own success, Coca-Cola proves that widespread generic use doesn’t have to mean the end of a trademark. In many parts of the Southern United States, ‘Coke’ is used as a catch-all term for any soda, a classic case of potential genericide. However, because the company has been aggressively vigilant from the beginning, policing imitators and strictly controlling how the name appears in advertising—they have maintained their legal ‘Secondary Meaning.’ It serves as a reminder: generification is not an automatic ticket to losing a trademark, but it does require a company to be its own most disciplined guard.
This level of protection wasn’t achieved through marketing alone; it was won in the courtroom. In its early years, the company faced a literal army of competitors, from ‘Koke’ to ‘Fig Cola,’ all attempting to ride the coattails of the brand’s success. By launchng hundreds of lawsuits, the company successfully destroyed early imitators and established a legal precedent that ‘Coke’ belonged to one company and one company only. This fierce defense prevented the name from becoming a generic term for the entire category of brown, carbonated sodas.
Coca-Cola wanted to own the term “cola,” itself. The company was unable to protect the term “cola” from becoming a generic term. However, regardless of the term cola being fair game for any soda company, there is absolutely no danger that Coca-Cola will ever lose its trademark on its name.
The “Brand Name” Defense: Xerox vs. Thermos
The Xerox Corporation provides a masterclass in linguistic defense. Unlike the King-Seeley Thermos Co., which allowed ‘thermos’ to be used as a standalone noun, Xerox has spent decades training the public to use their name as an adjective. You will rarely see an advertisement that simply says ‘Buy a Xerox’; instead, they insist on the phrasing ‘XEROX® brand copiers.’ By consistently pairing the trademark with a generic descriptor (copiers), they ensure the law views ‘Xerox’ as the source of the product, not the product itself, a vital distinction that King-Seeley failed to make with their ‘insulated bottles.'”
Other examples of marks that are in danger are Kleenex, Google, and Photoshop (ADOBE® PHOTOSHOP®). These are all, however, active and enforced trademarks. Just because a trademark is sometimes used generically does not mean has lost its status as a valid mark.
Deep Dives into Trademark Battles
- Lite vs. Light Beer: Why Miller couldn’t protect a phonetic misspelling of a common word.
- Zatarain’s Fish-Fri vs. Chick-Fri: A fascinating look at how a brand can be protected in one city but generic everywhere else.
- The Bundt Cake Trademark: How a single cake recipe saved a brand name from the dictionary.
- The Smiley Face Cookie Fight: Can you actually own the rights to a classic symbol on a cookie?
The History of Iconic Marks
- The “Cheeseburger” Trademark: Before it was a generic menu item, it was a registered brand.
- The Oldest Food Trademark in the U.S.: Meet the brand that has outlasted almost every other label on the shelf.