Google Avoids Genericide, Will Remain A Protected Trademark

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Genericide, as it's known, is the curse of companies whose brands gain such strong currency in the marketplace that they morph into product categories.

The lawsuit, brought by a man named Chris Gillespie, claimed that Google should no longer be trademarked because the word "google" is synonymous to the public with the term 'search the Internet. "Think of aspirin, escalator, thermos or yo-yo, but not Coke". "It set parameters for what you can and can't do with a brand name", said Jon Schiffrin, a private attorney who used to be a trademark examiner for the U.S. Patent and Trademark Office.

Google retains its trademark though the name...

He rejected the claim that Google itself has used the word generically, for which the plaintiffs offered an email from Larry Page, encouraging recipients to “[h] ave fund and keep googling!” This was merely another example of verb use, Tallman said.

In the Google case, the appeals court sided with the search giant because people still think of "google" as a brand that identifies the company.

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On Tuesday, the U.S. Court of Appeals In San Francisco upheld that decision [PDF], ruling that the men didn't present sufficient evidence to show that the general public sees the word "google" as a generic name for internet search engines.

Because not a single competitor calls its search engine "a google", and because members of the consuming public recognize and refer to different "internet search engines, " Elliott has not shown that there is no available substitute for the word "google" as a generic term. Once again, Google has prevailed and protected its highly valuable trademark in a court decision.

Despite losing in the District Court, the individuals had not given up the fight, and appealed the ruling in the Ninth Circuit Court of Appeals.

"The mere fact that the public sometimes uses a trademark as the name for a unique product does not immediately render the mark generic", Judge Richard Tallman wrote in the appeals court ruling. Judge Paul Watford concurred separately, calling the majority opinion “well-reasoned, ” but arguing that it was unnecessary “to resolve whether evidence of indiscriminate verb use is categorically irrelevant in an action alleging that a trademark has become generic.”.

"This premise is flawed: a trademark performs its statutory function so long as it distinguishes a product or service from those of others and indicates the product's or service's source", McNamee wrote.

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