Made In America - Bill Bryson [157]
Such names have more than passing importance to their owners. If American business has given us more than our share of anxiety, we may draw some comfort from the thought that business has suffered anxiety of its own protecting the names of those products.
A certain cruel paradox prevails in the matter of preserving brand names. Every business naturally wants to create a product that will dominate its market, but if that product so dominates the market that the brand name becomes indistinguishable in the public mind from the product itself – when people begin to ask for a ‘thermos’ rather than a ‘Thermos brand vacuum flask’ – then the term has become generic and the owner faces the loss of its trademark protection. That is why advertisements and labels so often carry faintly paranoid-sounding lines like ‘Tabasco is the registered trademark for the brand of pepper sauce made by McIllhenny Co.’, and why companies like Coca-Cola suffer palpitations when they see a passage like this (from John Steinbeck’s The Wayward Bus):
‘Got any coke?’ another character asked.
‘No,’ said the proprietor. ‘Few bottles of Pepsi-Cola.
Haven’t had any coke for a month ... It’s the same stuff.
You can’t tell them apart.’12
An understandable measure of confusion exists concerning the distinction between patents and trademarks and between trademarks and trade names. A patent protects the name of the product and its method of manufacture for seventeen years. Thus from 1895 to 1912, no one but the Shredded Wheat Company could make shredded wheat. Because patents require manufacturers to divulge the secrets of their products and thus give rivals the opportunity to copy them, companies sometimes choose not to seek their protection. Coca-Cola for one has never been patented.13 Trademark is effectively the name of a product, its brand name. Trade name is the name of the manufacturer. So Ford is a trade name, Escort a trademark. Trademarks apply not just to names, but also to logos, drawings and other such symbols and depictions. The MGM lion, for instance, is a trademark. Unlike patents, trademarks have indefinite protection in America.
For a long time, it was felt that this permanence gave the holder an unfair advantage. In consequence, America did not enact its first trademark law until 1870, almost a century after Britain and even then the American law was thrown out as unconstitutional by the Supreme Court. Lasting trademark protection did not begin for American companies until 1881. Today the number of trademarks on issue in America is something over 1 million, and is rising by about 30,000 a year.
A good trademark is almost incalculably valuable. Invincible-seeming brand names do occasionally falter and fade. Pepsodent, Oxydol, Sal Hepatica and Burma-Shave all once stood on the commanding heights of consumer recognition. For the most part, however, once a product establishes a dominant position in a market, it is exceedingly difficult to depose it. In 19 out of 22 product categories, the company that owned the leading American brand in 1925 still has it today – Nabisco in cookies, Kellogg’s in breakfast cereals, Kodak in film, Sherwin Williams in paint, Del Monte in canned fruit, Wrigley’s in chewing-gum, Singer in sewing-machines, Ivory in soap, Campbell’s in soup, Gillette in razors. A well-established brand name has a sort of self-perpetuating power. As a 1991 article in The Economist noted: ‘In the category of food blenders, consumers were still ranking General Electric second twenty years after the company had stopped making them.’14
An established brand name is so valuable that only about 5 per cent of the 16,000 or so new products introduced in America each year bear all-new brand names. The others are variants on an existing product – Tide with Bleach, Tropicana Twister Light Fruit Juices and so on. Among some types of product a certain glut is evident. At last count there were 220 types of branded breakfast cereal in America.