Man, if that's true, William Gibson's in a load of trouble. He used "google" a whole mess of times in Pattern Recognition.

I can't exactly blame them. Part of the problem is that Google *has* to go after infringers or risk losing trademark protection. If that happens, search engines risk becoming "googlers", by marketing types exploiting google's success.

US Trademark Law needs a way to permit use of a trademark in this way without causing it to become a "general" phrase that competitors can use.

Oren, you're incorrect. Allowing the generic use of "to google" by critical/academic sites like WordSpy does *not* constitute an abandonment of trademark (in fact, trademark abandonment involves a *very* high standard that is far in excess of allowing people to casually use your mark). What's more, trademark specifically does NOT protect your mark from use in criticism, parody, instruction, and other first amendment contexts.

Trademark exists to prevent marketplace confusion, not to stifle speech. Trademark lawyers promulgate the idea that any unauthorized use starts down the slope to abandonment, but it's simply not true. Any reasonable person can make a common-sense determination about whether a trademark use is infringing by asking whether the use is likely to cause confusion in the market.

I'm really disappointed in Google. This is bad and foolish behaviour from a company that I have a lot of respect for.

The example people usually cite about now is Bayer, which lost its trademark protection on Aspirin during WWII, since that is pretty much the ONLY major example we have of a trademark becoming generic.

But Bayer *didn't* abandon its mark in Aspirin. Rather, Bayer fought on the wrong side of WWII, and lost the rights to Aspirin when the US govt nationalized all the Nazi trademarks.

Edited by author 02-26-2003 12:19 PM
asprin and kleenex? I don't know what kind of evening you have planned for yourself, but I support it ;)

Seriously though, this is the first time I've seen Google's rep take a hit in the online communities. I know there are "Googlewatch" websites, but as a whole, Google maintains a very high level of respectability. It will be interesting to see how they respond to the hit on their rep. I expect they'll take patching-up actions before the week is out.

Cory's right, Oren's not. The express purpose of trademark law is to prevent confusion in the marketplace that may result in the trademark owner losing revenue to a competitor. This would be considered "dilution" of the "good will" which belongs to the trademark owner as a product of that ownership.

In practical terms, this means that if (and ONLY if) another search engine commercally advertised itself "Google" or anything that could be reasonably confused with Google, then the owners of the Google trademark may be compelled to take action.

Remember that a lawyer bills FOR EVERY LETTER he mails on his client's behalf. Google's failure here is in trusting their lawyers that these letters were necessary when, in fact, they were not.

BTW, I am not a lawyer (though I'd beat one on TV).

Whatever happened to the much vaunted "Don't be Evil" maxim?

Edited by author 02-26-2003 12:41 PM
I think this is a real shame. Heap bad whuffie, fo' sho'. What kind of mindset does a marketing department have to be in to allow a company to do this sort of karma burn?

More to the point, as I understand it you cannot trademark a verb. Presumably, then, you cannot enforce a trademark when that mark enters into dialect in verb-form. "Google" is enforcable; "to google" is not.

On the other hand, from an etymological point of view the Wordspy chap has an obligation to note the origin of the verb "to google" in Google, the trademarked name of (arguably the most successful) online search service. Had he done this, I believe he would have met all reasonable trademark-protection standards.

Michael, you *can* trademark phrases that contain verbs, like "Avoid the noid."