Three news items I came across in a row were about the same thing, though on the surface they had nothing to do with one another. The Texas chain Buc-ee's won a dispute with a small Ohio chain over a cartoon animal looking to the right. The price of a Big Mac is now calculated by a machine-learning model, while for the global index in which that same burger serves as the unit of measurement, the editors take the figure from the company whose name the index is evaluating. And in one discussion, someone remarked that any list of examples indicts the method of record-keeping more than it does memory.
The shared layer in all three stories is legal control over a word: who has the right to say “this is my name,” and what happens when they can no longer say it because the name has passed into the language. I went digging through my own archive and found a hole of a peculiar size. There was nothing there about the most famous case in history of a lost name—aspirin. The subject is so thoroughly inhabited that it seems there is nothing left to investigate.
Aspirin is the trade name for acetylsalicylic acid, a painkiller and fever reducer that Bayer introduced to the global market in 1899 and that, over the course of a century, became the best-selling medicine in history. Formally, “Aspirin” is still a registered trademark of that German company. But not everywhere. And that phrase—“but not everywhere”—turned out to be more interesting than the loss itself.
The name emerged as a way around the law. In Germany at the end of the 19th century, prescriptions had to be filled exactly as written, so chemical companies began giving medicines short trade nicknames that a doctor could remember and say aloud.
Bayer named acetylsalicylic acid by fusing three parts: “a” from acetyl, “spir” from Spirsäure—the old German name for salicylic acid, itself derived from the plant Spirea ulmaria, meadowsweet—and “-in,” the standard pharmaceutical ending of the time. In the final round of discussion within the company, two options remained: Aspirin and Euspirin. They feared Aspirin would rhyme in the listener’s mind with “aspiration.” Arthur Eichengrün objected to “Eu-”: the prefix “good” usually meant an improved version of an existing remedy, while nothing had been improved here—the substance was already known. In January 1899, they chose Aspirin; in March of that same year, it was entered in the register of the Imperial Patent Office in Berlin.
The same man left the company with a second name, one Bayer now recalls less often. Heinrich Dreser, head of the pharmacological laboratory, privately preferred another product—diacetylmorphine, synthesized by Felix Hoffmann several days before acetylsalicylic acid. Dreser believed it was gentler and better tolerated, and promoted it as a cough remedy under a trade name registered in May 1898: Heroin, from the German heroisch, “heroic.” Both words came out of the same laboratory, the same series of experiments, a few months apart. Both became generic terms. And if aspirin is said to have died of success, heroin lost its name for the exact opposite reason, as we will see below.
As for aspirin, the German Patent Office refused a patent in 1899: it found the inventive step insufficient. In the United States, a patent was granted—No. 644,077, issued on February 27, 1900—and it expired exactly seventeen years later, in February 1917. Then begins the legal part, where the popular retelling diverges from the primary sources.
The standard version goes like this: the Treaty of Versailles in 1919 stripped defeated Germany of its rights to aspirin and heroin, and the word was left orphaned. BBC repeats this version, as do trademark-law blogs, and it is convenient—there is a culprit, a date, and drama.
The treaty, however, says something else if you read it article by article. Part X of Versailles does indeed allow the Allies to limit industrial-property rights of German nationals, seized or acquired before and during the war—but the wording itself contains an explicit reservation: excepting trademarks. A separate article of the annex provides that if, before the war, a company from an Allied country jointly owned marks with a German company, the right to use those marks in third countries passes only to the former. In other words, marks were separately stipulated and protected. Seizure under Versailles and seizure of trademarks were two different legal frameworks.
The American framework operated without Versailles altogether, because the U.S. Senate never ratified the treaty. Here, the Trading with the Enemy Act of 1917 applied, with its 1918 amendments. After war was declared on Germany in April 1917, a special official—the alien property custodian—began hunting German business, and Bayer was a tempting target. To avoid surrendering profits and assets to the state, management transferred shares to a new company, nominally American but run by the same German-American directors. The scheme was exposed, and all of Bayer’s American holdings were seized outright.
After an amendment permitted the sale of seized property, the government put both the plant in Rensselaer, New York, and all American patents and marks under the hammer—along with the Bayer name itself and its cross logo. The buyer was Sterling Products, a maker of proprietary medicines; at auction in 1918, it paid five million three hundred thousand dollars for Bayer’s American operations, including the right to the name.
The scale of the seizure was not just about aspirin. In 1919, the Chemical Foundation was incorporated in Delaware—an organization created specifically to buy seized German patents and hold them “in trust for the Americanization of industries.” In all, the foundation paid the custodian $271,850 for seized German patents, marks, and copyrights: the price of an entire chemical industry, taken whole. The government came to its senses in 1923 and tried to undo the deal, arguing collusion between industrialists and officials and the fictitious nature of the price. The Supreme Court spent three years on the case and dismissed the suit in October 1926: it found no collusion, no fraud, no nominal price. Two hundred seventy-one thousand eight hundred fifty dollars—that, by decision of the highest court, was what it cost to transfer the chemical industry from German hands to American ones.
There is a separate judicial line. In May 1917, a month before the matter was settled by force, Bayer sued United Drug Company over its use of the word Aspirin. The case was heard by Judge Learned Hand, and his 1921 opinion is worth reading for one sentence alone: the sole question is what buyers understand by the word over which the parties are contending.
Hand put it plainly: if buyers understand a word as nothing more than a kind of goods, then it no longer matters how much the plaintiff spent on advertising or how hard it tried. It has failed, and it cannot claim that the defendant is taking away customers who wished to deal specifically with it. The judge then split buyers into two classes and handed down a ruling he himself described as one in which “each side has won and each side has lost.”
The first class consisted of manufacturing chemists, wholesalers, pharmacists, and physicians. Since 1899, Bayer had bombarded them with letters, brochures, advertisements in professional journals, and free samples, hammering home its association with the word so thoroughly that they also had a second, official name for the drug—“acetylsalicylic acid.” The court forbade sales of aspirin to these buyers under the word Aspirin.
The second class was consumers. The company had not addressed them at all: the powder went to doctors and pharmacies, while tablets, from 1904 onward, were made by large chemical houses such as Squibb and sold under their own names, without a single mention of Bayer on the label. Bayer’s collision with the public came, remarkably enough, only at the end of 1915—when patients, in Hand’s own words, had long since stopped consulting doctors and went to the pharmacy themselves for “aspirin.” And for this class the court required neither a prefix nor a disclaimer: the word had entered the public domain.
To give the reader a sense of the weight of the ruling, one figure should be added: the defendant alone sold nearly sixteen million tablets over two years. The tablet market was growing like an avalanche, while the company that had coined the word kept talking to doctors.
The most caustic passage in the judgment is the explanation. Hand notes that the company could have protected itself without the slightest difficulty: by insisting that tablet manufacturers sell them in boxes bearing the Bayer name, or by taking the trade into its own hands. Instead, it allowed chemists to build consumer demand without regard for the mark. And the conclusion: “Having made its bed, it must lie in it.” He separately observed that Bayer’s own label—“Bayer Tablets of Aspirin”—gave the game away: the phrase “Bayer’s aspirin tablets” means that the consumer uses the word as a designation of a type of product, otherwise why add the name and the preposition?
This is where the main non-obvious point lies. Genericide—that is what English-language legal practice calls the transformation of a trademark into a generic term—is usually presented as punishment for success. Read the judgment and you see that the punishment was for the absence of communication: the court literally measured which half of the “company–buyer” pair had failed to do its part. The German manufacturer turned out to be unnecessary to the only class of buyers that mattered, and that decided the outcome.
The irony lies elsewhere. The 1921 ruling did not kill the word—it split it. For professionals, Aspirin remained a mark; for the public, it became the name of the product. That is why, for decades, American pharmacies carried packages from other manufacturers bearing the word “aspirin” in lowercase, while Bayer’s own advertising foregrounded the name “Bayer” and added the word “genuine” to aspirin. Later, a court found even the word “genuine” on someone else’s label too ambiguous and banned it.
The second divergence in the sources concerns what “lost” means. Current data say that capital-A Aspirin remains a registered Bayer trademark in Germany, Canada, Mexico, and more than eighty countries. An article in a Ukrainian legal publication from the mid-nineties, relying on data from the search firm Compumark, gives a very different figure—between twenty-six and thirty-six countries—and questions Bayer’s claim of “more than seventy.” The discrepancy may lie in the timing or the method of counting, but the ambiguity of the number is itself the point here: “ownership of a word” is not a binary state.
The everyday consequence of this geography is something you can touch. In Canada, the generic drug is sold under the abbreviation ASA because the word “aspirin” is taken there. Bayer legal counsel Christina Kersten says the mark is the most labor-intensive one in her portfolio, and that companies from other countries cannot understand why the rule changes from border to border: in Latin America, drugs lawfully imported from the United States cannot be sold as Aspirin in Brazil or Colombia.
The post-Soviet space became the third round of the same story. In 1992, Bayer registered the trademark “Aspirin” in Russia and demanded that everyone else stop producing aspirin—the French Laboratoires UPSA, the Horlivka-based Stirol, the Kharkiv-based Krasnaya Zvezda. In 1994, the Federal Arbitration Court invalidated the registration: the word was found to have entered common use and lost its connection to a specific manufacturer.
Bayer re-registered the marks, and in February 1996 the Appeals Chamber annulled the rights again. The case included expert opinions from the Institute of the Ukrainian Language and sociological surveys—the evidentiary case rested on the fact that adjectives were formed from the word and that in the 1969 USSR Pharmacopoeia, “aspirin” appeared as the second name after the chemical one. In a Ukrainian court, UPSA, conversely, lost its claim to cancel Bayer’s marks. The same word, the same language, two neighboring markets, two different decisions.
Then begins the genre English practice calls “brand policing”: for years, companies train the world to speak awkwardly about their products. The toolkit repeats itself among everyone who has ever come close to losing a name. A generic descriptor is attached to the mark—“Kleenex tissues,” “Velcro fasteners.” The word “brand” is written into an advertising jingle: Johnson & Johnson changed its Band-Aid lyric to “I stuck on Band-Aid brand.” Xerox ran campaigns urging people to say “photocopy” instead of “xerox,” Lego printed requests in its catalogs to call the bricks “LEGO Bricks or Toys,” not “LEGOS,” and bought the address legos.com to redirect children to the correct website.
Google’s story deserves separate mention—not because there is drama in it, but because it shows the limit of the method. In 2013, the Swedish Language Council added the word ogooglebar (“ungoogleable”) to its annual list of new words, received a complaint from the company, and removed the word from the list—but published a statement along with the removal saying, in effect, that we choose and define words ourselves. That, perhaps, describes the balance of power more precisely than any press release: the linguistic status of a word is determined neither by a court nor by a company.
Velcro went in for direct self-parody in 2017: it released a video, “Don’t Say Velcro,” urging people to use the English term hook and loop. Lawyers disagreed on whether to regard this as an example to follow—but the fact that a company has spent half a century of advertising budget promoting how people ought to name its product is revealing enough.
And now for heroin, the second product of that same laboratory. Here, everything is reversed. It did not win the market; it lost it and was banned, and it was precisely the ban that made the word generic: once the substance was criminalized, there was no one left to sort out whose brand it was, nor any reason to. In lists of generic names, it stands beside aspirin—two Bayer trademarks synthesized one after the other, both lost for mutually exclusive reasons.
It ended with the same bureaucracy with which it began. Since 1918, American rights to the Bayer name and to aspirin had sat on the books of different owners: first Sterling Products, then Eastman Kodak, then—through a $2.9 billion deal—the British company SmithKline Beecham. Bayer litigated against Sterling for more than half a century. The final point was a purchase: in September 1994, Bayer announced that it was acquiring Sterling Winthrop’s over-the-counter business in the United States, Canada, and Puerto Rico for one billion dollars. With it, Bayer got its name back in the country where it had been seized seventy-six years earlier, and it cost exactly a billion—against the five million three hundred thousand for which the name had been taken at that very auction in 1918.
The irony is that it was buying a declining asset: sales of Bayer and Bayer Select had fallen seventeen percent over twelve months, to one hundred twenty-six million. The point of the purchase lay elsewhere—the right, once again, to say “Bayer” on its own packaging in the world’s largest pharmacy market.