Chanda N. Tembo, Generic Trademarks in Action - the Two-Edged Sword of Branding Success

Abstract

A trademark is an economic tool created and recognised by law to distinguish goods and services of a business from the goods and services of other businesses. Distinguishing goods and services is key for preventing consumers from being misled or confused about the nature and origin of the goods or services particularly from competing businesses. The important element that enables this ability to distinguish goods and services is the concept of distinctiveness in trademark law. This paper asks the question whether ‘distinctiveness’ can be a two-edged sword for successful branding. In answering the questions this paper employs a doctrinal approach underpinned by economic theory in considering how ‘genericness’ is a factor that can lead to loss of distinctiveness of a trademark and the legal and economic implications of such loss on the affected trademark.