Originally posted 2013-09-16 11:10:42. Republished by Blog Post Promoter

p0ps blog quotes Adobe:

“The Photoshop trademark must never be used as a common verb or as a noun. The Photoshop trademark should always be capitalized and should never be used in possessive form, or as a slang term.” What’re these people thinking?

Chill out, Pops. It’s a matter of trademark genericization. You can’t verb a trademark proper noun… but a common noun, a part of speech, why those get verbed ever’ day. And parts of speech, why, they are not trademarks. They are English.

Just Google a little to find out what I mean.

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.

9 thoughts on “To Photoshop; perchance, to Google”
  1. Sure, I’m chill. I know they could lose the name if it continues to be used as a verb or common noun. And that they have to make a statement. And that it is short-sighted of me to comment on it at all. But, I also know that their desires will not affect the continued common uses of their name in private speech.

    Ed.:  Don’t sweat the chill, Pops. I think I knew you knew.  It just gave me an angle to comment on your pickup!

  2. If the usage requirements for Photoshop® are being directed to the general public, then they are overreaching, since trademark owners cannot control how people speak and write, nor do they need to. If, on the other hand, the quote was taken from a set of guidelines for news and advertising media, then it is entirely appropriate. Even so, trademark owners should not purport to dictate how their mark “must” be used, but should humbly and diplomatically ASK the media to respect their trademark rights and use their mark consistently with those rights. As everyone’s grandma used to say, you catch more flies with honey than with vinegar. Although I never understood why anyone wanted to catch flies.

  3. The Photoshop® brand graphic program people are attempting a Band-Aid® brand bandage solution to their trademark genericity problem. They’ll have to Xerox® brand photocopy machine lots of copies of their demands, which will likely go unheeded anyway, leaving their legal department crying into their Kleenex® brand facial tissues.

  4. Google just won a TTAB opposition against the mark BLOGLE for search engine software. (Opposition No. 91171124). The Board found the mark GOOGLE to be famous. As part of evidence of fame, it pointed to dictionary entries listing GOOGLE as a trademark, and particularly the definition in The American Heritage Dictionary of the English Language:

    “Google – A trademark used for an Internet search engine. This trademark often occurs in print as a verb, sometimes in lower case: “A high school English teacher … recently Googled a phrase in one student’s paper and found it had been taken from a sample essay of an online editing service.”

    Photoshop, take note!

  5. In short, John is saying that what I said in the blog item is 180 degrees wrong — that a dictionary usage proves, not genericness, but trademark strength.

    Does that sound right?

    Bob, the idea of anyone suggesting that trademark owners might push the envelope… much less that they might suggest that on this blog… is highly accurate.

  6. This strikes me as not much different than when consumers call for a “coke,” indifferent to which cola they get, but still using COKE as a trademark due to their obious understanding that, despite their indifferent desire re brand, their state of mind is that they know it’s a reference to a brand. Cf. the dismantling of the consumer motivation standard for genericism.

    When consumers use GOOGLE as a verb, it’s not always a generic use, and I suspect surveys would show it’s almost never a generic use.

    Likewise, this is probably also the case with PHOTOSHOP, at least among consumers who regularly use that product professionally or otherwise.

    But these are largely exceptions that prove the rule. More often than not, clients will be damaged by the evolution of TMs to verbs.

  7. The significance of the dictionary entry is presumably affected by the fact that it refers to Google as “a trademark”, rather than as a lowercased generic word.

  8. Well God save us from the day when we decide trademark status by a dictionary’s “determination” of what is a trademark. Of course it cannot be a lower-case word, at least not yet; it was only coined in the last, what, seven or eight years? Dan, are you moved by that?

  9. Actually, everything in the world should be decided by what’s in Wikipedia… that way I can change it all to my liking!

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