If I am not generic, who am I? If I am generic, what am I?

(With apologies to Hillel.) The Seattle Trademark Lawyer reports on a recent California district court decision finding "kettle" generic for a type of potato chip. Briefly noted: a chip industry leader, whose testimony the court found credible and persuasive, described "kettle" as a generic term -- like, he said, Xerox and Kleenex, which he believed used to be trademarks but now referred to photocopiers and tissues generally.

I teach my students that Xerox and Kleenex are the best examples (perhaps now joined by Google) of modern marks that will never be declared generic by a court despite widespread generic use by ordinary consumers. Here, an experienced marketer recognizes that people use Xerox and Kleenex generically, while simultaneously recognizing that there are specific companies behind Xerox- and Kleenex-branded products. And I doubt most consumers are any different -- depending on what precise question you asked them, they'd say both that Xerox is a specific source of copiers and that another name for photocopier is "xerox machine."

What I find particularly interesting about the comparison is that, unlike Xerox or Kleenex, "kettle" has always had an obvious generic meaning -- the chips were cooked in a kettle. Rather than suffering "genericide," "kettle" was born generic. The gentleman testifying was responsible in significant part for creating the kettle segment of the potato chip market, so he understandably feels like he's lost some proprietary rights now that the market recognizes that segment as a distinct entity -- but he really hasn't.