I'm not sure I see your point. It's a two step process (IANAL): 1) fail to defend your trademark, 2) broad usage becomes popular, so you lose your mark. Sure, you may not lose your mark without (2), but you don't get to (2) without (1) and your only opportunity to stop the process of losing your mark is at (1).
So, MartinCron's claim is perhaps not invalidated by the list, since those names have the additional property of having become popular, but how does that technicality translate to whether or not SEOMoz needed to take action? Is the idea that it is OK for SEOMoz to do nothing under the assumption that Doz will never become popular?
By the way, I'm in no way siding with SEOMoz here -- I don't think it's clear that they deserved to get that mark (with the Mozilla confusion) in the first place, or that Doz is confusingly similar, but if they feel it is confusingly similar I don't see how you can argue that they can sit back and do nothing without having a risk of losing the mark.
Edit: Or, is your point perhaps that "Doz" and "Moz" are different words, so even popularization of "Doz" would not cause the "Moz" mark to be diluted?
> It's a two step process (IANAL): 1) fail to defend your trademark, 2) broad usage becomes popular, so you lose your mark. Sure, you may not lose your mark without (2), but you don't get to (2) without (1) and your only opportunity to stop the process of losing your mark is at (1).
No, that's not how marks become genericized. Marks become genericized when the consumer's mind uses the mark as a word for the category rather than as a specific product/line/company. Defending your trademark in court doesn't actually help against genericization, there's no step 1 then step 2 there's only step 2. Step 1 is irrelevant.
> Is the idea that it is OK for SEOMoz to do nothing under the assumption that Doz will never become popular?
If "doz" became genericized, Doz would lose its mark, not moz.
Marks become genericized when the consumer's mind uses the mark as a word for the category rather than as a specific product/line/company.
Wouldn't that be facilitated by consumers seeing other companies/products in the category using the same/similar name (hence my (1))? Admittedly, consumers may spontaneously expand the meaning of a word (e.g. "google" as a verb for "to search") without a competitor having encroached upon it. If Microsoft ran "Use Bing to google what you are looking for" ads and Google didn't protest, would a court really give that no weight (as an admission that Google had accepted it being generic) if Google brought a trademark case against some other party in the future?
Of course, Doz and Moz are different words, and that may be a critical point.
I don't think Kleenex got generalized because other tissue companies named themselves Fleenex and Gleenex. Or Band-aid because of Land-aid and Gland-aid. They became generalized because they were popular in their category and then any old knock-off (what ever the name) was the same to consumers.
> Wouldn't that be facilitated by consumers seeing other companies/products in the category using the same/similar name (hence my (1))?
Maybe, but I don't know of any occurrence of that.
> Admittedly, consumers may spontaneously expand the meaning of a word (e.g. "google" as a verb for "to search")
As far as I know, that's what happened every single time so far.
> If Microsoft ran "Use Bing to google what you are looking for" ads and Google didn't protest, would a court really give that no weight (as an admission that Google had accepted it being generic) if Google brought a trademark case against some other party in the future?
No but that's a very different case, that'd be Microsoft very specifically using it as a genericized mark which is a very different case than trademark dilution or confusion or whatever moz argues they're suffering from.
(and Google could actually do that to themselves by talking about googling stuff ("Escalator" was originally a mark of Otis, but the way Otis used them in their ads e.g. explaining that they offered "the latest in elevator and escalator design" made the trademark office conclude that they used it generically and scrap the mark))
