Probably because Google is announcing a lot of new things at once (buying Pyra, content-targeted advertising, world domination, etc.), the usual Google buzz has turned into palpable Fear and Loathing of Google. I apparently added a little momentum to the debate via Dave, with my comments regarding Googles “free ride” by selling paid advertising.
I want to be clear on the “free ride” issue (and I don’t want Google to be mad at me). There are multiple instances of “free rides” on the Internet and in real life, and while sometimes the free ride rises to trademark or copyright infringement, or unfair competition or unjust enrichment, most of the time, few are actionable.
The example I utilized – comparing a Google search for TRADEMARK to a Google search for TRADEMARK BLOG -illustrate the ambiguities of the situation. In the first case the searcher (presumably) only knows the subject of the resource he/she desires.
Metal wire was invented in approximately 400 AD. Barbed wire was invented in the 1870’s. Plaintiff began selling barbed wire in 1889. It began coloring the top wire strand red in 1920 (and received a trademark registration for red top wire fencing in 1921). Its KING RANCH wire is pictured above. Defendants began selling green top wire fencing in 2000. Plaintiff obtained a preliminary injunction as it has “a better than neglible chance” of establishing that defendants’ placement of any color (not just red) on the top wire of a barb wire fence will likely cause confusion with plaintiff’s mark. Keystone Consolidated v. Midstates Distributing, 65 USPQD2d 1492 (CD Ill Dec 2002) (decision applarently not online).
More on the history of barbed wire here.
More here on the long and tortuous history of the various Russian vodka trademarks such as MOSKOVSKAYA and STOLICHNAYA (some background here and here and don’t forget Moscow Distillery Cristall v. Pepsico, 4 USPQ2d 1217 (1998)).
I’m sure that blurb will make it to the back of the paperback edition of “Pattern Recognition,” the new novel by William Gibson, author of Neuromancer. The main character is a marketing consultant allergic to trademarks. Really.
The ABANet article on blawgs (with my picture) hit the web yesterday while I was still clearing customs in Houston. Hopefully readers who checked out the site enjoyed the nice picture of the parrot. I am honored to be mentioned in the same article as some of my favorite blogs, SCOTUS, How Appealing and Bag and Baggage. I also have to thank Ernie as usual, for putting in a good word.
Today’s Wall Street Journal’s lead article discusses the cat-and-mouse game between Google and those who seek to “game” Google in order to boost their rankings. Of interest is the discussion of the lawsuit brought by SearchKing against Google regarding Google’s tweaking of its search algorithm (and the resulting bad effects on SearchKing’s methods). In that case Google is arguing that its search results are in essence opinions of a website, and therefore protectable speech.
I’m of two views of Google. An astounding amount of my traffic results from people using various trademark related terms (and the term MECCA COLA). Because my site is updated regularly (this past week being an exception), and because there are apparently numerous links to this site, I place very highly on Google. Accordingly, the folk at Google are clearly geniuses, critical to the Trademark Blog’s success.
On the other hand, when someone uses TRADEMARK BLOG as a Google term, Google collects some amount of money from LEGALZOOM.COM and LITMANLAW.COM for paid advertisements. Neither the advertisers nor Google share that money with me. In this sense Google is a craven free-loader – exploiting an advertising medium not paying for content (dramatic overstatement indicator on). Some day the Ninth Circuit may decide the Playboy/Excite keyword case and we may get some guidance on “free rides.” In the meanwhile, Google does me (and the Internet) much more good than harm.