A January 2017 decision by the Trademark Trial and Appeal Board (TTAB) was presented with this question, however it did not answer it. The TTAB affirmed the refusal of a trademark registration for the term ‘eggcrate’ as merely descriptive of the applicant’s goods and did not render or discuss the argument of whether or not the term eggcrate is generic, which would preclude anyone from registering the term at all.
The purpose of a trademark is to allow consumers to connect a product with a source. The moment that the general consuming public associates that trademark directly with a product itself rather than a source is when a trademark becomes generic and anyone can use it.
Forward thinking companies constantly monitor the marketplace and pending trademark applications in order to protect their marks and avoid them from becoming generic. This is exactly what happened to Sealed Air Corporation’s Bubble Wrap and Minnesota Mining & Manufacturing Company, or 3M’s Scotch Tape. As a result of failing to vigorously protect their trademarks, they became associated with a product itself rather than a source, and as such, the terms have been used regularly in a generic manner for some time.
What do you think? Do you associate the term eggcrate with a generic item such as mattress padding, or with fluorescent lighting, or perhaps with a container used to hold eggs? It is your opinion that matters and will be taken into account when a court is perhaps posed with a case that requires them to answer whether or not the term eggcrate is indeed generic.
A knowledgeable attorney can be an asset when dealing with any legal matter. If you have questions or concerns about your intellectual property, I offer a free consultation and would be happy to discuss your situation. I can be easily reached at email@example.com or via the contact form on my website SturmanLaw.com
*The case is In re Comfort Revolution, LLC - Serial No. 86564234
*The parties in the case did argue the merits of whether or not ‘eggcrate’ is generic. However, in reference to the trademark office examining attorney’s determination that “eggcrate” appears to be generic… that “this was simply an advisory; no generic refusal was made, as such, that issue is not before the Board”, therefore declining to render a determination on the generic argument.