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.