Google Photoshop and Microsoft Photoshop On the Way?

If Adobe loses trademark protection on Photoshop, can Microsoft Photoshop and Google Photoshop be far behind?

On Facebook this morn­ing a dis­cus­sion broke out about the use of “Photoshop” as a verb. It start­ed with a col­league not­ing how much it ir­ri­tates him to hear “I pho­to­shopped this” and “I’m spend­ing my day pho­to­shop­ping.” Afterall, one wouldn’t say “I’m il­lus­tra­tor­ing and in­de­sign­ing to­day” or “I af­ter­ef­fect­ed this.” As valid as my colleague’s point may be, I look at the big­ger ram­i­fi­ca­tions of ho­mog­e­niz­ing the Photoshop brand name.

Having a sig­nif­i­cant in­ter­est in in­tel­lec­tu­al prop­er­ty law, I’ve won­dered many times in re­cent years why Adobe® al­lows Photoshop® to be used as a verb.

Initially, hear­ing “that pic­ture is Photoshopped” in a film or tele­vi­sion show–now a com­mon occurance–must have been flat­ter­ing to Adobe (ADBE) and those who help cre­ate and mar­ket Photoshop. Using “Photoshop” as a verb, ad­verb, ad­jec­tive, or pro­ce­dur­al noun cer­tain­ly brought lots of at­ten­tion to Photoshop, un­doubt­ed­ly in­creas­ing not on­ly sales of Photoshop it­self but aware­ness of Adobe’s en­tire cat­a­log of tools. However, is that ini­tial fame worth the in­evitable result?

The end re­sult of let­ting one’s brand be­come com­mon ver­nac­u­lar is that the brand be­comes in­el­i­gi­ble for trade­mark pro­tec­tion. Common words are not el­i­gi­ble for trade­mark pro­tec­tion. That’s why you see InDesign® and Dreamweaver®, but nev­er Illustrator®; it’s al­ways Adobe® Illustrator® be­cause the word “il­lus­tra­tor” is a com­mon English word and thus can­not be reg­is­tered by it­self as a trade­mark. (That’s why Candy Crush Saga-maker King Digital Entertainment will be forced to drop its lu­di­cris at­tempt to reg­is­ter a trade­mark on the word “can­dy”.) Once a word en­ters the com­mon lan­guage lex­i­con it los­es all abil­i­ty to be pro­tect­ed or reg­is­tered as a trade­mark and be­comes a “gener­ic trade­mark” or “gener­i­cized mark,” which is the equiv­a­lent of copy­right law’s Public Domain designation–anyone can use it with impunity.

That’s ex­act­ly what hap­pened with the pro­pri­etary brand names and for­mer­ly fully-protected trade­marks Aspirin (owned by the Bayer com­pa­ny but now a gener­ic mark in the United States), Dry Ice, Escalator, Thermos, Videotape, Webster’s Dictionary, Zipper, and many more. All of the afore­men­tioned terms were orig­i­nal words or phras­es cre­at­ed by a com­mer­cial en­ti­ty and pro­tect­ed by trade­mark law un­til they be­came so com­mon­ly used in spo­ken and writ­ten lan­guage that the United States Patent and Trademark Office (USPTO) de­clared them as gener­i­cized and no longer el­i­gi­ble for pro­tec­tion. That’s when any en­ti­ty can be­gin us­ing them.

Take a look at the list of dic­tio­nar­ies us­ing “Webster’s Dictionary” in their ti­tles and avail­able for sale on Amazon​.com. Only those di­rect­ly iden­ti­fied by the Merriam-Webster® brand be­long to the en­ti­ty who cre­at­ed and orig­i­nal­ly owned the Webster’s Dictionary brand. The rest are com­peti­tors us­ing the gener­i­cized “Webster’s Dictionary” term.

Photoshop is Adobe’s best-known and best-selling desk­top ap­pli­ca­tion by a very wide mar­gin. It is, in fact, of­ten de­scribed as Adobe’s flag­ship prod­uct. Without Photoshop–or with­out the abil­i­ty to be the provider of Photoshop–what would that do to Adobe? Prior to read­ing this ar­ti­cle, did you know that “Webster’s Dictionary” is used by a num­ber of pub­lish­ers and not just the orig­i­nal pub­lish­er? Did you know that tire man­u­fac­tur­er B.F. Goodrich cre­at­ed and pro­tect­ed “Zipper”? That shiny thing hold­ing the front of your pants to­geth­er is of­fi­cial­ly a “clasp lock­er,” but our pro­cliv­i­ty for call­ing it a “zip­per” lead to the Zipper trade­mark los­ing its protection.

If that hap­pens to Photoshop Adobe will not be the on­ly one sell­ing Photoshop.

We’ll see Corel Photoshop, Apple Photoshop, Microsoft Photoshop, Google Photoshop, and pos­si­bly even Quark Photoshop. Obviously we won’t lit­er­al­ly see all of those, but then there will be many oth­er com­pa­nies us­ing Photoshop as well. In a world where “Adobe” means to the av­er­age per­son PDF and Acrobat, which “Photoshop” will be the most rec­og­niz­able? Probably not Adobe’s.

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2 Responses

  1. Sally Cox says:

    Excellent post, Pariah!

  2. Well, I might not have InDesigned up a lay­out but I have done a spot of GIMPing here and a bit of Inkscaping there.

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