Google Successfully Defends Its Trademark from Genericide
Trademark law seems to affirm the notion that there can, in fact, be too much of a good thing. When a company’s trademark becomes too popular and so entrenched in our language that we use the trademark to identify a general product or service rather than a specific source, the mark undergoes “genericide,” and the company loses exclusive right to that mark.[1] Genericide is quite possibly the worst fate that a company’s trademark can face. Escalator, Zipper, and Yo-Yo are just a few such brands to have experienced genericide.[2] Companies like Xerox and Kleenex have gone to great efforts to ensure that their marks do not meet the same fate as so many before them.[3]
In recent years, Google, Inc. (“Google”) has also faced the specter of genericide. The challenge to Google’s trademark came from David Elliott and Chris Gillespie, as they argued that the term “google” is simply a verb meaning to search the internet and should therefore not be protected as a trademark.[4] The parties each filed motions for summary judgment. Finding no triable issue of material fact, the Arizona District Court granted summary judgment in favor of Google, rejecting the argument that mere verb usage equated to genericism.[5]
Elliott and Gillespie appealed the judgment of the District Court to the Court of Appeals for the Ninth Circuit, claiming that the lower court erred in granting summary judgment.[6] In its analysis, the Court of Appeals particularly noted that the Lanham Act requires that the trademark in question needs to be a generic term referring to a specific good or service.[7] Additionally, the Court also reiterated that the verb usage of a trademark does not necessarily make that trademark generic.[8] It emphasized that the public may use words in either a discriminate or indiscriminate sense, where a person may or may not have a particular product in mind, respectively.[9] The Court affirmed summary judgment in favor of Google, as Elliott and Gillespie failed to establish sufficient evidence that public uses the term “google” in an indiscriminate sense. [10]
The Court of Appeals decision stands, as the Supreme Court declined to hear the case and denied Elliott and Gillespie’s writ of certiorari.[11] Perhaps it is possible that, unlike in other genericide cases, Google’s immense popularity and gross market share is the reason why its trademark did not suffer this fate. Data suggests that Google owns around 70% of the global search engine market share, with the next highest share being held by Baidu at around 10%.[12]. If people do use the term “google” as shorthand for searching the Internet, they likely truly mean to search the Internet using the Google search engine, based on these statistics. Regardless of the reason, the Google trademark isn’t going anywhere anytime soon.
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