Google Is Not Going the Way of Kleenex, Cellophane, or Aspirin

May 17, 2017

"Google" is not generic—at least not according to a federal appeals court.

In an important trademark ruling, the 9th Circuit Court of Appeals found that "googled" may have become a synonym for Internet searching, but that doesn't mean the company can't protect its name.

The ruling, handed down in San Francisco this week, involved a man who registered hundreds of website names such as "GoogleDisney.com" and "GoogleBarackObama.com." After Google persuaded Internet regulators to hand over the names, the man sued to strip Google of its trademark, arguing the word "google" had become generic.

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This has happened to other brands in the past, including Kleenex. Under federal law, anyone can wipe out a trademark—and the legal protection it offers—if they can show most of the public thinks of the mark as a common word for a good or service. This phenomenon is known as "generocide."

But the appeals court says this isn't the case when it comes to Google. The court reviewed evidence, including lyrics from the rapper T-Pain that say "Google my name," to acknowledge people use the word "googled" as way to say "search the Internet."

This isn't enough, though, to invalidate Google's trademark. As the court explains, people still regard Google as a brand in its own right, even if its name is also a verb.

To make the point, the appeals court cited an earlier decision involving a restaurant that replaced customers' order for "a coke" with a non Coca-Cola beverage. In that case, Coke won the case because the restaurant failed to show people thought of cola and Coke interchangeably.

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. Here are some key observations from the decision (my emphasis):

If the relevant public primarily understands a mark as describing “who” a particular good or service is, or where it comes from, then the mark is still valid. But if the relevant public primarily understands a mark as describing “what” the particular good or service is, then the mark has become generic. [...]

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.

The news is good for Google, of course, because its trademark is enormously valuable. And as law professor Eric Goldman notes, the ruling likely spells good news for other brands whose names are used as nouns or verbs.

This story has been updated to reflect the ruling is good news for brands whose names are used as verbs; an earlier version incorrectly said adjectives.

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