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Fighting against genericide

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Opinion Google has been accused of lacking a sense of humour after setting its brand police on publishers who used its name as a verb. But the company has to protect its name.

When the Washington Post reported that "Google" had entered the Merriam-Webster Collegiate Dictionary, it observed that the word has become a descriptor for its sector. Google wrote that it must avoid "genericide" and provided a list of appropriate and inappropriate uses of its name.

Among its examples was this appropriate use: "I ran a Google search to check out that guy from the party"; and this inappropriate use: "I googled that hottie."

Google no doubt hoped that a light-hearted example would avoid the company sounding oppressive. It has to send letters like this; but its lawyers know that it has only limited powers to dictate how the brand is used. So the letters are seeking support, not threatening litigation.

The risk for Google is that it ceases to become a brand altogether. If it becomes generic, the brand can be struck from the register of trademarks, leaving the owner without rights. This has happened before: escalator, aspirin, pogo, gramophone and linoleum were once registered trademarks that became victims of genericide.

More recently, in 2002, Austria's supreme court ruled that Sony does not have exclusive rights to the Walkman name for personal stereos and allowed a wholesaler to label rival players as Walkmans. In 2004, Australia's trademark office has dismissed 'Linux' as too generic to protect.

Google is not alone in writing to media outlets: Band-Aid, Kleenex, Hoover, Perspex, Portakabin, Xerox, Frisbee and Jacuzzi are all still registered trademarks that battle against genericide.

We received a letter from Adobe in 2003 after using the word "photoshopping" in an OUT-LAW story about image manipulation. Adobe would have preferred us to refer to "Photoshop graphics software". As Adobe pointed out in its reasonable letter, publishers help to establish the popular vocabulary. It has to do what it can to prevent its marks falling into common generic use.

Brand owners can use the '®' symbol with their marks to show the brand is registered; and they can write to dictionaries and newspapers. Sometimes they advertise. Since the 1970s, Xerox has conveyed its brand guidelines through adverts in industry publications: "If you use 'Xerox' the way you use 'zipper', our trademark could be left wide open," reads one ad.

Merriam-Webster defines Google thus: "Google, trademark for a search engine: to use the Google search engine to obtain information about (as a person) on the World Wide Web"

Note the trademark reference. In contrast, the Concise Oxford English Dictionary has defined "Walkman" as a noun, without reference to Sony. Getting your brand into everyone's vocabulary might seem like the ultimate accolade, but it is dangerous. RIM must diligently protect "BlackBerry"; Sony must protect "PlayStation"; Apple must protect "iPod".

Genericide is a risk for many, but as long as Google continues to monitor and chastise brand misuse and abuse, it can be confident of its courtroom prospects should a rival search engine one day dare to promote "googling".

See also:

These are the personal views of the author and do not necessarily represent the views of Pinsent Masons.

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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