As brands grow, cultural fame can become legal risk. Genericide is rising, and every category‑defining business must act now to protect what makes its trade mark distinctive.
Published: 24 February 2026
Authors: Antony Craggs
When a brand achieves substantial commercial success and cultural significance, the trade mark may be used by the public as shorthand for the product category itself. Over time, this transformation from a distinctive indicator to a generic term can lead to revocation of the trade mark.
From BJORNEKULLA, KORNSPITZ, SPAMBUSTER to DRYROBE, there has been a long line of cases addressing genericism. In the latter, Dryrobe successfully defended its DRYROBE mark against claims of genericide, but the case underscores a wider tension: distinctiveness is both the foundation of trade mark protection and the attribute most vulnerable to erosion through linguistic drift.
This article outlines the legal framework governing genericide, highlights key authorities, and offers practical steps for brand owners to prevent their marks from sliding into the generic.
What is genericide?
Genericide describes the process by which a once‑distinctive trade mark becomes the common name in the trade for the goods or services it is registered. The statutory mechanism is found in s.46(1)(c) Trade Marks Act 1994, which provides that a trade mark may be revoked if, after registration: “…in consequence of acts or inactivity of the proprietor, it has become the common name in the trade for a product or service for which it is registered.”
Its rationale is clearly articulated in Kerly’s: the register must not be cluttered with monopolies over terms that the public and traders need to use descriptively.
While genericide is usually driven by public behaviour, it is triggered legally only where that behaviour can be attributed to the acts or omissions of the proprietor, showing how brand stewardship plays a central role in preserving distinctiveness.
“Tupperware” is the classic example of a mark walking the tightrope between fame and genericness. Although still a valid trade mark, global commentary frequently highlights how consumer vernacular threatens its distinctive character.
Other international examples include “thermos”, “aspirin”, and “escalator”. All of which lost trade mark significance in the US, which illustrates the universal risk that uncontrolled linguistic adoption by consumers can deplete even the strongest marks.
Legal test for genericide
Courts apply a fact‑sensitive “use as a mark” analysis to determine whether a sign still performs its essential function: identifying trade origin. Key factors include:
1. consumer perception
The central question is whether the average consumer uses the term to identify the trade mark owner’s product specifically, or to describe the product category more generally. Even widespread colloquial misuse is not determinative if consumers still recognise the term as a brand.
2. trade usage
If retailers, distributors or competitors adopt the term generically without correction, that weighs heavily in favour of genericism.
3. proprietor conduct
Section 46(1)(c) explicitly links revocation to the proprietor’s “acts or inactivity”. Failure to challenge misuse, educate the public, or maintain brand standards all create risk.
4. presentation of the mark
The court considers real‑world use: are the ® or ™ symbols used? Does packaging present the mark distinctively, or merely as product description?
Practical steps to prevent genericide
Brand owners can mitigate the risk of genericide through disciplined brand management:
- 1use the mark as an adjective, not a noun or verb: Prefer “DRYROBE® changing robe”, not “a dryrobe”. Correct employees, partners, and marketing teams who use it incorrectly.
- apply ™ or ® consistently: Symbols reinforce to the public and the trade that the sign is a trade mark.
- issue and enforce brand usage guidelines: Provide standard wording for press, retailers, ambassadors, and influencers. Require distributors to follow brand usage in listings and advertising.
- monitor and police misuse: Monitor social media, e‑commerce platforms, and industry press. Send cease‑and‑desist letters where necessary. Challenge dictionary entries, product category labels, and retailer headings that use the sign generically.
- avoid encouraging generic use through marketing: Never use the brand in lowercase if it is registered in uppercase. Avoid slogans or hashtags suggesting nounal use (e.g., “grab your dryrobe”).
- educate consumers subtly: Blog posts, FAQs, and packaging can include reminders that the sign is a registered trade mark. Consider “BRAND® is the original [product type]” messaging.
- maintain strong, distinctive brand presentation: Ensure packaging, logos, and website layouts highlight the mark’s “brand” function. Distinctive branding can reinforce trade origin.
- document corrective efforts: If litigation arises, evidence of consistent enforcement is invaluable.
Conclusion
Genericide is a real and ongoing threat to brands, but it is not an inevitable consequence of commercial success. The Dryrobe litigation shows that the courts will protect strong, well‑managed brands, but only where proprietors actively preserve distinctiveness and resist misuse.
A trade mark is not a static property right. It depends on the perceptions of consumers, the behaviour of the trade, and the vigilance of the proprietor. With deliberate management, clear communication, and firm enforcement, even the most culturally prominent brands can avoid sliding into the generic.