As Zoom Booms, Is Its Trademark At Risk Of Genericide?

By Bill Donahue
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Law360 (May 27, 2020, 4:59 PM EDT) -- Aspirin. Elevator. Thermos. Zoom? Has the videoconferencing platform become such a ubiquitous part of American life during the coronavirus pandemic that it risks becoming a generic term? 

Growing from 10 million daily meeting participants in December to more than 300 million by April, Zoom has become a household word practically overnight, filling a void for people looking to connect with friends and family as they practice social distancing.

Any company would love that growth, but for trademark lawyers it raises early warning flags for "genericide" — the idea that a brand will become such a fixture that consumers slowly begin to use it as a generic term for any type of similar product, eventually destroying its value as a trademark.

That process typically takes years of linguistic evolution, but the pandemic has potentially changed the calculus.

Between "Zoom happy hours," "Zoom weddings," "Zoom meetings," "Zoom trivia," "Zoom yoga" and Zoom just-about-anything-else-you-can-imagine, the company's name has quickly evolved into a kind of shorthand for a livestreamed substitution for real life.

"This sudden popularity and market dominance can be how it starts," said Alexandra J. Roberts, a professor of trademark law at the University of New Hampshire School of Law. "Not every story of genericide proceeds along the same path."

But according to Roberts and other trademark experts who spoke with Law360, the ultimate risk of genericide for Zoom is fairly low.

For starters, the more typical victim of genericide is a first-of-its kind product — often patent-protected — that creates an entire new genre of goods. Its trademark becomes the name for a type of product because there's no other word for it. When upstart competitors start making rival versions, consumers use the name they know.

Even with all its pandemic-fueled growth, Zoom isn't that. There were videoconferencing services before Zoom exploded this spring — including Skype, FaceTime, Google Hangouts and Microsoft Teams — and consumers know what to call them.

"I believe people are generally aware that Zoom is a specific company that provides a specific product," Roberts said.

Experts also say the legal consensus has evolved on how consumers use trademarks in a generic sense. In 2017, the Ninth Circuit ruled that "Google" had not succumbed to genericide despite widespread use of "google" as a generic verb for searching the internet.

"We recognize that consumers can simultaneously hold in their heads that 'Google' means 'to search for something' and also that it is a particular search engine run by a particular company," said Mark McKenna, a professor of trademark law at Notre Dame Law School.

"I think the same is likely true of Zoom," he said. "People are using it generically to mean videoconferencing, but they also know Zoom is a particular platform, distinct from Skype, Google and so on."

Another factor in Zoom's favor is that companies themselves have gotten smarter about staving off genericide when it nears.

Kleenex, Band-Aid and Xerox — three still-protected trademarks that are dangerously close to being generic terms — have spent years trying to remind consumers that they are brands, not product names. In one campaign, Xerox told consumers: "When you use 'Xerox' the way you use 'Aspirin,' we get a headache."

Such brand owners have also learned to avoid the kind of legal battles that result in courts officially declaring a trademark generic. It's not a coincidence that many of the seminal cases of genericide happened decades in the past.

That means that even if many Americans use "Popsicle" or "Taser" or "Q-tips" generically, you can bet the companies that own those trademarks aren't going to give courts many chances to say as much.

"Whether a mark has become generic in the minds of consumers is a different question from whether a court makes a formal finding," said Roberts, the New Hampshire professor. "Most mark owners will avoid [litigation] if they can because they're cognizant of the risk."

None of this means that trademarks won't still fall victim to genericide in the future, nor that "zoom" won't slip into the vernacular over the years. Roberts noted that her kindergartner was using Zoom for school and could grow up in a generation that understands the term as a generic.

But the more likely conclusion is that Zoom will avoid that fate because the once-dreaded genericide has simply become less common, thanks to changes in how both companies and consumers behave in the marketplace.

"I think it has do with our brand-centric society," said Andrea Anderson, a veteran trademark attorney at Holland & Hart LLP. "We use brands as a part of our everyday communication."

"In terms of Zoom becoming generic, I don't think so," Anderson said. "As brands and consumers have become more and more savvy, the phenomenon is happening less and less."

--Editing by Jill Coffey and Marygrace Murphy.

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