Is “Coke” a Generic Mark?
Here’s an issue that bugs me every time I teach genericism in trademark law. As you may know, if a brand name becomes the word of choice to describe the actual product (e.g., aspirin or thermos) then the trademark rights lapse because allowing one firm to hold a monopoly over such a word would put competitors at a huge disadvantage.
I wonder why “Coke,” which is a registered trademark of Coca-Cola, has never been challenged on this basis. Many people use “Coke” to mean “cola,” even though there are other kinds of cola (e.g. Pepsi and R.C.). Indeed, in some parts of the country “Coke” is commonly used to mean “soda.” And how often do you find yourself at a restaurant asking for a “Coke,” being asked “Is Pepsi OK?” and answering “Fine, I don’t care.” This would suggest that people think of “Coke” and “cola” as interchangeable
Now obviously there are people who do express a strong preference for Coke and swear up and down that it’s better than other kinds of cola. The question is how many people are in this camp and is that enough to justify giving “Coke” trademark protection. Anyone know of any empirical data on this?