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 shownow a com­mon occur­ancemust 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 des­ig­na­tionany­one 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 Photoshopor with­out the abil­i­ty to be the provider of Photoshopwhat 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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