JEEP a Brand name?

[Dave Wilton]

> >... it is exceedingly rare for a
> >truly "generic" word to become a trademark. In fact, it is
> my understanding
> >that federal law (since the 1940s) explicitly forbids it.
>
> This assumes the infallibility of the US Government among
> other things.
> "Thingamajig" is a US registered trademark, for example, from
> 1980 (generic
> use, 1828). "Skivvies" is (or was) a US trademark, from 1957
> (generic use,
> 1927, IN A SIMILAR APPLICATION).
>
> Maybe slang or colloquial terms tend to be ignored?

As far as I know (I'm not a lawyer, but as a software product manager I've
picked up quite a bit about intellectual property law), there isn't a "no
prior use" rule with trademarks as there is with patents. Trademarks do not
have to be original. They must, however, be "distinctive." This is defined
as being associated with a particular product or service, differentiating
that product from its competitors. And what is distinctive in one industry
may not be distinctive in another. Originality makes a trademark easier to
defend, but it's not a requirement. Everyday words can be trademarked, but
they're harder to defend--it's easier to prove a unique coinage is
distinctive.

An orchard, for example, could not trademark "Apple." It is not distinctive
in the world of fruit, describing a type of product not a particular one.
There was no problem, however, with a computer company trademarking "Apple."
This lack of distinctiveness is the problem with products like "Aspirin." If
a product is too successful (catastrophic success?), it's name may become
associated with the product in general, instead of the brand, therefore
losing its distinctiveness. It's the loss of distinctiveness that is key,
not simply widespread use of the word.

So, there is no problem with an automobile company trademarking "Jeep," so
long as no competing company manufactured vehicles known as jeeps. At the
time the trademark was established, there was only one manufacturer
(Willys?) who made a vehicle known as a "jeep." If you said "jeep" in the
context of automobiles, everyone knew you were talking about the light
trucks made by Willys and made famous by the US Army in WWII. Therefore it
was distinctive. Whether it remains distinctive in the future is something
else.

Also, it's relatively easy to get a trademark registered. Surviving a court
case challenging it is something else. "Thingamajig" may be registered, it
might not have a hope in hell of surviving a challenge though--or it might
if its application were narrow enough (IIRC, the trademark is for a candy
bar, and that may be sufficiently limited to prevent other candymakers from
using it as a product name).