I know this is not strictly a copyright question, but it seems to me that I now spend my time Zooming, having Zooms, meeting friends for Zoomtails, Zoomshipping, and so forth. I even Zoom when I am on some other system, like FaceTime. Is Zoom in legal trouble here?
Before the pandemic (if you can remember such a time), we used to use Skype for video conferences. Now, Zoom is how we work, learn, and socialize. It is a noun (“I have a 10 a.m. Zoom”), an adjective (“We’re having a Zoom wedding”), and a verb (“Let’s Zoom”).
Having such an important service in this crisis is a great business model. The market value of Zoom, which went public in April 2019, is now about $135 billion and was briefly higher than IBM’s!
Danger, Will Robinson!!
Zoom, however, may soon become a victim of its own success. The term for this is “genericide”. It happens when a trademark owner fails to defend the use of its mark by reminding the public that a trademark is always an adjective used to describe only one kind of the generic product or service offered. A famous instance of genericide was the 1921 Bayer Co. v United Drug Co. case, in which Bayer lost its trademark for Aspirin. (Judge Learned Hand ruled that “aspirin” had become generic for acetylsalicylic acid, and could be used by any manufacturer of the drug.)
Other victims of genericide include escalator (once the trademark of the Otis Elevator Co. for a moving staircase), and dumpster (a “portmanteau” of “dump” and “Dempster,” the surname of the brothers who patented their waste-handling container in 1935). For more, click here.
Other trademark owners have been able to prevent their trademarks from becoming generic, however. Xerox, Jeep, Band-Aid, and Kleenex all invest in marketing messages to remind us, the consuming public, that their products are but one type of each good. That is why, “You can’t Xerox a Xerox on a Xerox. But we don’t mind at all if you copy a copy on a Xerox® copier”, and why you can apply a “Band-Aid brand sterile strip” to a boo-boo that you have wiped with a “Kleenex brand facial tissue”.
Will Zoom become generic for video conferencing? It depends on how the company markets itself. After all, we seem to uber, google, and venmo —even when we’re not actually using Uber, Google, or Venmo, but those remain valid trademarks (for now).
Have a popular product or service? You should consider registering your trademark. Zoom the attorneys at LW&H. They’re really wearing pants!
Until next month,
— Lawrence A. Husick, Esq.