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Do You ZAPPOS at Work? Online Retailer Encourages Improper Trademark Use

At a time when many companies plead with the public to make proper use of their trademarks, it’s almost shocking to see one company encourage the public to do just the opposite — to use its trademark as a verb instead of as an adjective.

Here’s what Zappos.com is telling potential customers: “Ok, so I Zappos at work. Check out our outstanding service and massive selection of shoes and apparel and you’ll Zappos too.”


Contrast that message with what Tivo Inc. tells its customers:

“The TiVo logo and trademarks are some of our most valuable assets and it is essential that they be used correctly in writing and are protected or they will be lost.

“A trademark is lost when it becomes generic, i.e. when it has come to mean the product as distinguished from a certain brand of the product. If our trademarks become generic, they could be used by competitors to describe their goods or services. Consider the following now-generic nouns that were once trademarks: Escalator, Linoleum, Kerosene, Lonolin, Cellophane, Thermos, Aspirin, Yo Yo and Bikini. The importance of correct trademark use cannot be emphasized enough.

Tivo goes on to warn: “Trademarks are always proper adjectives. They should never be used as a verb.


Correct: I want to record ‘Desperate Housewives’ on the TiVo® DVR.

Incorrect: I want to TiVo ‘Desperate Housewives.’”

As Tivo’s efforts correctly suggest, Zappos.com’s ad campaign is fatally flawed. If it succeeds and convinces consumers to associate ZAPPOS with buying shoes online in general — rather than the online shoe seller Zappos.com in particular — the company will lose its rights in the very trademark it is trying to promote. Even worse, campaigns like this hamper the efforts of other trademark owners who spend advertising dollars encouraging proper trademark use. Consumers are left with the mixed message that it’s ok to “zappos” but not ok to “tivo.” That hurts all trademark owners.

So is Zappos.com ignorant of trademark law? Or is it knowingly seeking a short-term benefit at the expense of others?

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Reader Comments (5)

I'm not quite in agreement.

As long as ZAPPOS refers to that particular website, maybe it's not so bad. Check out the GOOGLE case here: http://tinyurl.com/27h4jh
and the cases cited therein.

It's one thing if ZAPPOS refers to all discount shopping, but quite another if ZAPPOS refers to a particular shopping site.
May 28, 2007 | Unregistered CommenterJohn L. Welch
Thanks, John. I took (or perhaps mistook) Zappos.com's use of its trademark as a verb to refer to the act of buying shoes online. If the ad instead refers to the act of buying shoes online from Zappos.com, I suppose I don't see the same problem. However, I do still see Zappos.com as kind of a bad trademark neighbor. While Tivo and other trademark owners are paying good money to fight genericide, Zappos.com's campaign works against that goal by conditioning consumers that it's ok to use trademarks as a verb.
May 28, 2007 | Registered CommenterMichael Atkins
Use of one's trademark as a verb is hardly new, and hardly limited to smaller fry like Zappos. Yahoo!'s ad campaign for years was "Do you Yahoo!?," accompanied by an annoying "yahoo" yodel/shout that I'll probably have stuck in my head for the rest of the day.

Is Yahoo!, like Zappos, "ignorant of trademark law," in your view? Or did its marketing and legal department jointly decide that the benefit of injecting the brand into daily conversation was worth the marginal risk that consumers might come to use the "Yahoo" name to describe services not associated with the Yahoo company?
May 29, 2007 | Unregistered CommenterJJAL
Whether the verb "Zappos" refers to buying shoes or wearing them, it's unlikely that the use of the verb-form would catch on sufficiently to become a generic term and harm the ZAPPOS owner's trademark rights. The precaution that a mark should always be used as an adjective, preferably modifying a generic term ("Kleenex facial tissues"), makes sense for a product that is first to market a new product or service, like Xerox or Rollerblade or Tivo or Google. But where a trademark represents one product or service in a field of several competitors, it is much less likely that the term--even if used improperly--will become the generic word to designate that product or service.
May 29, 2007 | Unregistered CommenterR C Cumbow
The fact that this post even exists is testament to how profoundly out of step with the intent of the law most lawyers are. The notion of preventing consumers from using a brand name in a short-sighted defense-of-trademark effort costs the brand on the backend in terms of lost gains from network effects. Jello, Xerox, and Kleenex aren't crying in their trademarks re: consumers using their brand names. In fact, this verbing of the brand is a likely contributor to the brands' market dominance.

Trying to clamp down on this is a sign of weak brand flailing for market relevance.
December 4, 2007 | Unregistered CommenterANP

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