By Jeff John Roberts
August 21, 2017

Words like cellophane, aspirin, and thermos used to be protected brand names in the U.S. until courts found them to be “generic” and stripped away their trademarks. Now, two men are asking the Supreme Court to do the same thing to Google, arguing the company’s name is an everyday verb and should no longer receive legal protection.

In a petition filed last week, David Elliott and Chris Gillespie asked the Supreme Court to overturn a ruling this spring that upheld Google’s right to use trademark law to stop them using its name on websites like “GoogleDisney.com” and “GoogleBarackObama.com.”

That ruling, issued by the 9th Circuit in California, found that “google” may be a verb but that it is still a brand in its own right. The decision acknowledged that evidence, including lyrics by the rapper T-Pain, shows “google” can be synonymous with “search the Internet” but pointed out that no other search engine calls itself “a google”—meaning the company’s name is still distinct.

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Elliott and Gillespie, however, claim the 9th Circuit’s decision is too broad because “verbing” of words is now common, and that trademarks should not inhabit this practice:

We now refer to magazine cover photos as “photoshopped”; we “windex” our windows to remove streaks; we “xerox” exhibits; we “rollerblade” down the street on our inline skates; we “wite-out” the mistakes in a term paper; and we read a news article about the police “tasering” a resistant suspect. This appropriation by the public is not something to be prevented; rather, it is something to be encouraged. It fills holes in the language created by the rapid progress of our species, allowing for more efficient and effective communication.

The filing also argues that the 9th Circuit made the test for defeating a trademark too strict, and that it should—based on an older decision by a different appeals court—instead have simply looked at how most people use the word in question. If this were the case, the filing suggests, the fact most people use “google” as verb should be enough to defeat the trademark.

The appeal however, is likely a long-shot. The Supreme Court only accepts around 1% of all appeals, and typically does so when there’s a pressing legal question or a significant split between appeals courts. It’s not apparent the 9th Circuit’s “google” ruling, which was supported by trademark scholars, meets either of these criteria.

The Supreme Court will likely announce whether or not it will hear the case sometime in early 2018.

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