Protecting trademarks from language change

Proper use of the Photoshop trademark (via Alex Utter)

INCORRECT: The image was photoshopped.
CORRECT: The image was enhanced using Adobe® Photoshop® software.

INCORRECT: A photoshopper sees his hobby as an art form.
CORRECT: Those who use Adobe® Photoshop® software to manipulate images as a hobby see their work as an art form.

There seems to be a continuum of how much meaning a trademark has lost in colloquial speech:

  1. Used only as an adjective or noun to refer to the correct product.
    • "You should eat something healthier than Goldfish crackers and Oreos."
  2. Used in a non-traditional manner, but only when referring to the correct product.
    • "I googled her".
  3. Used when it a competitor's product might be used instead.
  4. Used even when you know a competitor's product will be used.
    • "Can you go downstairs and xerox this for me?"
  5. Used in the same sentence as a competitor's trademark.
  6. Used as a noun modified by a competitor's trademark. (At this point, you're screwed.)

Trademarks incorrectly used as verbs and trademarks incorrectly used as generic nouns can both lose their meaning over time. US trademark law is less friendly to trademarks that get used as verbs, but I don't know whether trademarks used as verbs naturally lose their meaning faster.

If Adobe isn't worried about its Photoshop trademark becoming more and more generic, it should continue doing the legal minimum to discourage its use as a verb, and the world will continue to make fun of Adobe. (After all, every "That image must have been photoshopped!" is free advertising.) But if Abode is worried about its trademark losing its meaning, it should start by rewriting its trademark-use guidelines to have better motivation and less awkward suggestions. For example:

The use of "photoshop" as a verb worries us because history has shown that verbed trademarks often lose their meaning over time. For example, "to xerox" was once fun shorthand for "to photocopy using a Xerox photocopier", but it has taken on a life of its own as a colloquial verb meaning simply "to photocopy", costing Xerox Corporation $... to protect its trademark and putting the company at risk of losing trademark protection.

When writing articles, always use a generic verb, such as "enhanced", "manipulated", "edited", or "altered", adding "using Adobe Photoshop" if appropriate. In informal speech, use the verb "to photoshop" only to mean "to alter using Adobe Photoshop", and consider saying "altered" or "shopped" rather than "photoshopped" when a competing product might have been used.

Our trademark lawyers think you should say "Adobe Photoshop software" rather than "Adobe Photoshop", but in the real world, most trademarks are nouns in addition to adjectives, so don't listen to them. But most trademarks are not used as verbs, and trademarks that are used as verbs are at high risk for losing their meaning.

(Disclaimer: I am neither an IP lawyer nor a linguist, so I don't know what I'm talking about.)

Posted on February 28, 2004 at 02:07 AM in Intellectual Property, Linguistics | Comments (4) | TrackBack (0)