Before it was Google, Google had the horrible name “Backrub.” Founders Larry Page and Sergey Brin mercifully changed it, 20 years ago, to a variation on the mathematical expression “googol,” which refers to the number 1 followed by 100 zeros. Google’s corporate site says it reflects the company’s mission to “organize the world’s information and make it universally accessible and useful.”
Now Google is a brand worth an estimated $113 billion, and the word “google” is often used as a verb meaning “to search online.” Two entrepreneurs — who are not quite on the level of Page and Brin — are trying to exploit the popularity of the term, saying it has become so common that Google should no longer have a monopoly on its own name.
David Elliott and Chris Gillespie filed a petition with the Supreme Court court on Aug. 14 urging the Supreme Court to hear its argument that the public, through everyday conversation, has gradually transformed the brand name “Google” into a generic verb.
The notion that Google could lose the name Page and Brin created by being too successful may sound absurd. But companies have lost their names before.
The word “aspirin,” for example, was invented by Bayer to describe its then-unique painkilling pill, and only Bayer was allowed to use it. But a court ruled in 1921 that the brand name had been transformed by widespread public use to refer all pills with the same ingredients — which allows competitors to use the name aspirin on their packaging.
The more Google’s lawyers think about that case, the more aspirin they may need.
“Consumers are in charge of the language,” Harvard law professor Rebecca Tushnet told TheWrap. “Whatever they think is a generic term for a product or service, is.”
She said that the “key question before the court is what percentage of the consumer population” is using the word “google” as a generic term and whether a majority of consumers still think of the specific Google search engine.
“It depends on the evidence — press use, dictionary use, and other evidence, including the claimant’s own generic use,” she said.
So far, the lower courts have ruled in favor of Google, citing Google’s consumer surveys showing that most consumers who use the word “google” are referring to using Google, not competing search engines like Bing and Yahoo.
Google obtained a trademark for its name from the federal government, giving it a monopoly over the name. A trademark helps inform consumers that they are buying a product from a given company, and not being tricked into buying a different product from other businesses.
The dispute goes back to 2012, when Gillespie bought more than 700 internet domain names beginning with the word “google,” such as googledisney.com and googlebarackobama.net, without Google’s permission. The company claimed copyright infringement.
In every administrative and court ruling so far, Google has won — and it now has control of Gillespie’s website names.
In an appeal to the U.S. Court of Appeals for the 9th Circuit, Gillespie and Elliottt accused Google of bullying dictionaries into adding a reference to the trademarked name Google to their definition of “google” as a generic term.
They also cited rap artist T-Pain, arguing that when he said in one song, “google my name,” he was using the word generically.
Now the debate will go to the Supreme Court, if the Supreme Court chooses to hear it. Aspirin might not be enough to help the justices and their clerks struggle through all the issues involved.
They may also need backrubs.