Under the Influence with Terry O'Reilly - Genericide: When A Brand Name Becomes Generic

Episode Date: August 5, 2023

This week, we look at the concept of “Genericide” – when brand names become generic. Many of the pioneering brands in our world risked losing their trademarks – as courts would rule that their names had become generic. Zipper, escalator and refrigerator were all trademarks at one time. The board game Monopoly just lost its trademark recently. Now brands like Kleenex and Band-Aid are fighting to save their valuable names. And their stories are fascinating. Hosted on Acast. See acast.com/privacy for more information.

Hi, it's Terry O'Reilly. As you may know, we've been producing a lot of bonus episodes while under the influences on hiatus. They're called the Beatleology Interviews, where I talk to people who knew the Beatles, work with them, love them, and the authors who write about them. Well, the Beatleology Interviews have become a hit, so we are spinning it out to be a standalone podcast series. You've already heard conversations with people like actors Mark Hamill, Malcolm McDowell, and Beatles confidant Astrid Kershaw. But coming up, I talk to May Pang, who dated John Lennon in the mid-70s. I talk to double fantasy guitarist Earl Slick, Apple Records creative director John Kosh. I'll be talking to Jan Hayworth,

who designed the Sgt. Pepper album cover. Very cool. And I'll talk to singer Dion, who is one of only five people still alive who were on the Sgt. Pepper cover. And two of those people were Beatles. The stories they tell are amazing. So thank you for making this series such a success. And please, do me a favor, follow the Beatleology interviews on your podcast app. You don't even have to be a huge Beatles fan, you just have to love storytelling.

Subscribe now, and don't miss a single beat. Due to popular demand, we've dug very, very deep into our archives and are pleased to announce the re-release of episodes from the last season of The Age of Persuasion. And we've remastered them to fit our Under the Influence format. Here is an episode from 2011. Your teeth look whiter than no nose. You're not you when you're hungry. You're a good hand with all the teeth. You're under the influence with Terry O'Reilly.

Okay, Houston, we've had a problem here. This is Houston. Say again, please. Houston, we've had a problem. With those historic words, Apollo 13 was plunged into a do-or-die scenario. It was supposed to be the third lunar landing, but when Oxygen Tank No. 2 exploded, it caused Oxygen Tank No. 1 to also fail. The command module's normal supply of electricity, light, and water was lost, and they were 200,000 miles from Earth. The three astronauts' only chance of survival was to crawl out of the failing command module

and move into the lunar module, where life support systems weren't yet compromised. But the lunar module was built to support two men for two days, and now it was being asked to support three men for four days. Therefore, carbon dioxide began building up in the confined space immediately. There were filters from the command module they could use, but they were square. The filters in the lunar module were round.

So, in a race against time, NASA had to figure out how to create a round filter out of whatever materials existed on board the lunar module, resulting in maybe the most amazing scene in the Apollo 13 movie.

It just isn't a contingency we've remotely looked at. Those CO2 levels are going to be getting toxic. Well, I suggest you gentlemen invent a way to put a square peg in a round hole. Next, the NASA engineers dump a box of every available item, loose object, and material from the lunar module onto a table. The lead engineer holds up a small square box and a round filter. We've got to find a way to make this fit into the hole for this, using nothing but that. Let's get it organized.

Okay, let's build a filter. Remarkably, they find a way to build a round carbon dioxide filter. Ed Smiley, who led the NASA team who designed the temporary filter, said later he knew the problem was solvable when it was confirmed that duct tape was aboard the spacecraft. I felt like we were home free, he said in 2005. One thing a southern boy will never say is, I don't think duct tape will fix it.

Hard to believe that duct tape saved Apollo 13. Duct tape is a fascinating product with an interesting history. It was developed by Johnson & Johnson during World War II as a water-resistant sealing tape for ammunition cases. The story goes that soldiers used to call it duct tape, as in D-U-C-K, because of the tape's ability to shed water, as in like water off a duck's back. Johnson & Johnson didn't bother to trademark the name, as it was the only product like

it in existence. That would be a mistake. Later, as servicemen came back from the war, the admiration for duct tape came home with them. Duct tape is good for fixing anything, except duct work. Ironically, building codes demand a special fire-resistant tape

with a foil backing and a long-lasting adhesive. Who knew? But research suggests that it was used to repair duct work in the 1950s housing boom until building codes

became stricter, hence the reason the word duck became duct. Since the 1940s, duct tape has been one of the most popular go-to products in hardware stores around the world. But the trademark opportunity was lost, and duct tape is now a generic term. The loss of trademarks has come to haunt many of the biggest brands in history. Zipper, Escalator, and Refrigerator were all trademarks at one time. But now, they are just generic terms for entire product categories. Those pioneering brands watched as their mighty trademarks slipped from their grasp.

Incredible products that went from genius to generic. You're under the influence. Every marketer harbors the same dream deep in their heart. A dream that their brand name will become number one, the dominant category leader. Most brands will struggle for decades to climb that slippery ladder, hoping against all hope they will be the one customers reach for most often. But for some major brands, achieving that lofty goal was the worst thing that could have happened to them.

Because once they dominated their category, their brand name became genericized. The term genericized is defined as when a brand or trademark has become so colloquial, so generic, it becomes synonymous with the entire category. The etymology comes from the Latin word for kind or class, put together with the word side for killing. Therefore, the irony is that when a brand becomes genericized, it is because the product or service has acquired market dominance. Put another way, they have achieved the pinnacle of marketing goals. They are number one.

But then their vast popularity kills their trademark. In 1983, the U.S. Supreme Court let stand a decision by the Ninth Circuit Court of Appeals which ruled the name Monopoly had been genericized. They further stated the term Monopoly had become a common descriptive name for that type of board game and thus no longer afforded trademark rights to the manufacturer. That was a huge blow for Parker Brothers. The court had used a novel test to determine genericide in that case. They felt the genericness of a once-established trademark

does not depend on any perception the public may have concerning the jeopardized trademark, but rather what motivates a significant portion of the product's purchasers to buy the product. In other words, do most people come to buy the Parker Brothers game or do most come to buy board games of that ilk? The courts determined it was the latter, which resulted in the ruling. Today, genericide haunts the makers of all major brands.

History does show that pioneering products are the ones that suffer genericide most often, starting with a famous case that happened 100 years ago. When Henry Perkey created shredded wheat back in 1893, he started the Shredded Wheat Company. When the patents expired in 1912, rival Kellogg wasted no time in producing a shredded wheat product of its own. Even though John Kellogg had gone on record saying that shredded wheat tasted like a shredded doormat. The shredded wheat company objected to Kellogg's use of the word shredded wheat and sued. But they had failed to renew their trademark protection for the name,

and the Patent and Trademark Office concluded that the term was merely descriptive, and when the trademark had elapsed, it had passed into public domain. Kellogg won. That set a precedent and sent chills down the spines of other pioneering products, like Kleenex. In the early 1920s, paper manufacturer Kimberly-Clark had created its first ever consumer product, called Kotex. Designed for feminine hygiene, it was developed from a process called creped cellulose wadding. But because Kotex was not a success when first launched,

Kimberly-Clark needed to find other uses for their new creped wadding. So, by changing the manufacturing process a little to make it softer, the facial tissue was born. The name Kleenex came from a combination of the word clean, spelt with a capital K, and the X came from its predecessor, Kotex. It was envisioned as a disposable cleansing tissue to replace the unsightly cold cream towel

that women used at that time to remove makeup. In 1925, Kleenex ran its first ad in Ladies' Home Journal with the headline, The new secret of keeping a pretty skin as used by famous movie stars whose complexions are always under close inspection. Around this time, Ernst Mahler, the head researcher at Kimberly-Clark, started using the tissues instead of a handkerchief to help him with his hay fever. Gesundheit.

In 1929, the familiar pop-up Kleenex boxes with the perforated opening were introduced. The idea caught on, and in 1930, Kleenex sales doubled. That marketing decision made Kleenex a product not just used by women, but by men and children too. But the market dominance of Kleenex has been a double-edged sword. Kleenex is the number one tissue brand, but its name has become generic. Recently, Kleenex ran some interesting print ads. In one, with the headline, you don't need a social security number

to get our identity stolen, the ad went on to say that, when you've spent nearly a century building a name that people know and trust, the last thing you want is people calling any old tissue a Kleenex tissue. The ad finishes by saying, simply put, Kleenex tissue. The ad finishes by saying, simply put, Kleenex is a brand name.

Well, them's fighting words. Clearly, Kimberly-Clark is still fighting against the generic side of their product name. If the shredded wheat company lost its ability to defend shredded wheat after only 15 years, I can't imagine Kleenex can do it after 100, but they are spending a lot of money right now to try and protect their trademark.

So the next time you go to say, hand me a Kleenex, please, you may want to revise that to say, hand me a Kleenex brand tissue, please. Everybody knows that sound. Scotch tape was invented around 1930 by a young 3M engineer named Richard Drew. As the story goes,

the name Scotch tape was coined as a result of an insult. At that time, manufacturer 3M only made sandpaper, and Drew was at a car painting shop testing their product when he noticed the painters were having a hard time keeping a straight, clean line where two different colors met. So he was inspired to invent a tape that would help the painters. First, he created a 2-inch wide tape, but it was deemed too expensive.

3M then lowered the price by only applying the glue to the edges of the tape. That created a problem. The tape wouldn't stick. That's when a customer threw the tape back at Drew and said, in a pejorative way,

take this tape back to your stingy Scotch bosses and tell them to put more adhesive on it. That inspired the name, and it stuck. Scotch tape became a household staple during the Depression as people learned to make simple household repairs with it. In 1939, 3M welcomed the Snail, its iconic handheld tape dispenser. Look at any classic Scotch tape dispenser from the side

and it looks exactly like a snail. In 1945, the famous plaid design was introduced, further cementing the Scotch branding. And in the 1950s, 3M decided to advertise Scotch tape on that new fangled medium called television and created a character called Scotty McTape would serve as the brand mascot for over 20 years. Even in those early days of the 50s, you can see 3M wanting to protect its trademark. Near the end of the commercial, the announcer reminds us, So insist on Scotch brand, America's number one cellophane tape. Don't accept substitutes. Look for the word Scotch and the plaid design.

Consumers would go on to vote Scotch tape as the most indispensable household product of all time, and it was named a Humble Masterpiece by the Museum of Modern Art in New York in 2004. To this day, scotch tape is so dominant, it has become the generic name for all sticky household tape. Except in Scotland. A friend of mine worked there for a year,

and when she asked for a piece of scotch tape, nobody knew what she was talking about. Over there, it's called cellophane tape. But what happens when you trademark a new miracle drug named heroin, and it becomes your best-selling product. Hello. What can I do for you? I'd like some heroin, please. There you go. That'll be $10.

Thank you. Don't laugh. Until 1924, you could buy heroin in stores. There was heroin cough syrup, heroin lozenges, and heroin tablets. The most amazing thing was that heroin was a trademark of Bayer. It even had a slogan.

Heroin, the sedative for coughs. Discovered by a British chemist in 1874, heroin was mass-produced by German pharmaceutical company Bayer 14 years later. The name heroin was inspired by the heroic fearlessness and painless sensation users felt after taking it. Pharmacists marketed heroin as an excellent painkiller and a cure for many respiratory ailments. An early print ad from Bayer shows a box of heroin with the headline, Send for a sample and literature. By 1899, Bayer was producing about a ton of heroin a year

and exporting it to 23 countries, claiming it was 10 times more effective than morphine as a painkiller and wasn't habit-forming. Hmm. Heroin was marketed as a non-addictive morphine substitute and cough suppressant. By 1902, heroin accounted for roughly 5% of Bayer's net profits. But later that year, French and American researchers began reporting cases of heroin addiction.

Next, the Harrison Narcotics Tax Act of 1914 was passed to control the sale of heroin. And in 1924, the United States Congress banned its sale outright. It didn't surprise anyone when Bayer let their heroin trademark expire. Around that same time, Bayer launched another drug, called aspirin. It was a painkiller without any undesirable side effects,

and when the heroin bubble burst, aspirin had more than filled the market gap. Maybe the most ironic fact of all is that heroin, the trademark, was replaced by aspirin, a trademark that would later itself become genericized. Way back in 1948, a lady named Kay Draper was having trouble with her cat. She kept a pile of sand in her yard, which she would draw from to put in a box, so her cat could relieve itself while in the house. But Mrs. Draper lived in Michigan, where the winters were cold and the sand would freeze.

When that happened, she used ashes from her fireplace, but her cat left sooty little footprints all over her house. So she knocked on the door of her neighbors, the Lowe family, who owned a small company that sold industrial absorbents, including sawdust and concrete. Edward Lowe, who had just returned from the Navy to join his father's business, suggested she try a product of theirs called Fuller's Earth, which comprised of kiln-dried clay balls.

Mrs. Draper tried the product and loved it, or should we say, her cat loved it. Ed Lowe had a hunch there must be more cat lovers out there with the same problem. So he filled a dozen brown paper bags with five pounds of clay each and scribbled a name on them. The name he chose was Kitty Litter. He offered the bags to his local pet store, who turned him down flat, saying they couldn't understand why anyone would pay 65 cents for a bag of clay when sand was free. Discouraged, Lowe gave the bags to the pet shop owner and told them to give them away for free. But a funny thing happened.

Cat owners loved the product and happily parted with 65 cents for subsequent bags. With that early inkling of success, Ed Lowe hit the road and drove tens of thousands of miles, offering his kitty litter to pet stores and wholesaling companies across the country. He often cleaned cat boxes at pet fairs in exchange for a booth to sell his product. He looked for every opportunity he could and even sold kitty litter bags out of the back of his 1943 Chevy Coupe. Soon, Ed Lowe was building a real business around his kitty litter and founded Edward Lowe Industries. His company included a cattery, which was home to over 120 felines who worked to constantly improve the product.

Over the years, competitors emerged, but Ed Lowe and his kitty litter remained the number one brand. Fifty years after filling his first bag, Ed Lowe sold his company for $200 million. Today, cat box filler is a billion-dollar industry, and like Kleenex, the company tries to protect its valuable trademark, even though it can be argued that kitty litter has become the default term for the entire cat box filler category.

Even the dictionary definition of litter now says, an absorbent material such as granulated clay for covering the floor of an animal's excretory box. And it all happened because Ed Lowe was a pioneer. He was number one in number two. When you cut your finger, do you say, I need a band-aid, or do you say, I need a band-age?

Chances are you say band-aid. Back in 1920, Earl Dixon was a cotton buyer for Johnson & Johnson, and his bride Josephine was a stay-at-home housewife. Housekeeping didn't come easy to Josephine, and Earl would notice she always had cuts and burns on her fingers. So he would cut pieces of adhesive tape and cotton gauze to make time-consuming bandages for her.

Finally, after several weeks of this, Earl hit on the idea of preparing ready-made bandages so if Josephine needed one, she could apply it herself. He took his idea to his boss at Johnson & Johnson, and in less than a year, the Band-Aid brand was born.

As with most pioneering brands, the term Band-Aid eventually became generic, as it was the dominant brand in the category for so long. But Band-Aid was very aware of the generic side it was flirting with, and they have continuously tackled the problem with advertising. You may remember this famous jingle, written by none other than Barry Manilow. I am stuck on Band-Aid, cause Band-Aid's stuck on me. But that legendary jingle underwent a change in the 1980s, and one very important word was added.

Now when people sang about being stuck on Band-Aids, they now said they were stuck on Band-Aid brand. I am stuck on Band-Aid brand, because Band-Aid's stuck on me. Band-Aid's story is maybe the most symbolic of all pioneering brands struggling to protect their trademarks, because it all comes down to one thing, making sure the name sticks. It's understandable that in a world overrun with brands, the intense desire to protect trademarks is paramount. Yet it was the pioneering brands who had the most trouble.

The ones that were virtually all alone in their category, without any competition in sight, they would be the ones that would eventually lose their trademarks. And they lost them because they committed the worst sin of all. They became too popular. Xerox fought to make people say photocopying instead of Xeroxing to protect their brand. And Google fought to stop people from using their brand as a generic verb, as in Googling something. On the other hand, there are brands that desire genericide. Google competitor Microsoft says its search engine Bing has the potential to verb up.

It wants people to Bing it when searching online. It appears the company is willing to lose its trademark in order to become the dominant search engine. But tell that to Refrigerator and AstroTurf and Fr, and Thermos, and even Dumpster. Or should I say Icebox, Artificial Grass, Flying Disc, Vacuum Flask, and Waste Receptacle. Because once a trademark becomes just a word, it erodes the value of the brand. And when that happens, you can't even fix it with duct tape. When you're under the influence. I'm Terry O'Reilly.

This episode was recorded in the TerrorStream Airstream mobile recording studio. Producer, Debbie O'Reilly. Sound engineer, Jeff Devine. Under the influence theme by Ari Posner and Ian Lefevre. Tunes provided by APM Music. Follow me on social at Terry O'Influence. If you liked this episode, you might also like our sister podcast titled, We Regret to Inform You, The Rejection Podcast. It tells stories about people who overcome massive career rejection

and succeed by never giving up. You'll find it wherever you listen to podcasts. You can also find our podcasts on the new Apostrophe YouTube channel. And if you think there are too many ads in a show about advertising, if you prefer a more generic version, you can now listen to our podcasts

ad-free on Amazon Music. See you next time. Fun fact, Scotch tape is one of the only products that is in virtually every home and office in North America. That's what happens when you make a product that sticks.