Trademark status of "whizzinator"

RonButters at AOL.COM RonButters at AOL.COM
Sun Apr 24 17:36:14 UTC 2005

I checked the website, and there is no claim there (that I can see) that the 
manufacturers of "the Original Whizzinator" have registered their trademark. 
Of course, the might be able to make a good case for claiming common-law 
trademark rights. 

In any case, it is certainly premature of Larry to judge that the product 
name has undergone "so-called" genericide (an informal term universally applied 
by the American legal profession to describe the legal genericization of a 
formerly viable trademark). One would need to analyze the 3,760 Google hits, as 
well as search for the term in other contemporary contexts, to even BEGIN to 
make such a claim. One swallow does not necessarily make a spring (or a 
specimen-cupful, for that matter). Moreover, while the author of the passage that Larry 
examines (as oppposed to the players whom the author quotes) may not know 
that the term is a trademark, since he is not one of the actual consumers, his 
opinion really doesn't count legally. Bear in mind that, since the players 
merely uttered the word "Whizzinator," there is no way for the author to know that 
the term is or is not a trademark, since he has not seen the packaging, or the 
advertising, or perhaps even the product itself: "whizzinators, they called 
them" is no more valuable as evidence than "hummers, they called their 
vehicles" would have been under parallel circumstances.

In a message dated 4/24/05 10:30:43 AM, laurence.horn at YALE.EDU writes:

> From today's cover story in the NYT Magazine, "Absolutely, Power
> Corrupts" by Michael (_Moneyball_) Lewis, on the overemphasis on home
> run hitting in the minor leagues and the concomitant abuse of
> anabolic steroids, which in turn leads to new and better schemes for
> evading the "putatively rigorous drug testing" in the minors, we have
> this observation (p. 48):
> "In 2003, players were going off into a separate room to fill a cup
> with urine; that was a joke.  Last year, the testers followed the
> players into the bathroom; steroid users were said to fill false
> penises--whizzinators, they called them--with clean urine and stick
> the down their pants."
> So I googled "whizzinator" and, lo and behold, 3760 hits.  While
> clearly the source is the trademarked product sold under that name
> (cf. it appears to have already
> undergone our favorite formation processes from earlier this spring:
> so-called genericide.  (Clearly, the use cited by Lewis involves a
> common noun and not the specific product marketed here as an "easy to
> conceal, easy to use urinating device with a very realistic
> prosthetic penis.* It has been extensively tested and proven to work
> under real-life conditions!")  So this item is already cozily
> ensconced in the lexicon and I've missed the whole process.  I can
> blame it on our local Stop and Shop for their failure to stock
> whizzinators in the false appendages aisle.
> Larry
> *P.S.  According to another site, it comes--oops, false
> advertising...better make that "it is marketed"--in "white, tan,
> latino, brown and black".  Presumably you can tell the Latino version
> by the accent, or the code-switching.

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