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The Google Shortcut to Trademark Law

Lisa Larrimore Ouellette

Stanford Law School

February 8, 2013

California Law Review, Vol. 102, p. 351, 2014

Trademark distinctiveness — the extent to which consumers view a mark as identifying a particular source — is the key factual issue in assessing whether a mark is protectable and what the scope of that protection should be. But distinctiveness is difficult to evaluate in practice: assessments of “inherent distinctiveness” are highly subjective, survey evidence is expensive and unreliable, and other measures of “acquired distinctiveness” such as advertising spending are poor proxies for consumer perceptions. But there is now a simpler way to determine whether consumers associate a word or phrase with a certain product: Google. Through a study of trademark cases and contemporaneous search results, I argue that Google can generally capture both prongs of the test for trademark distinctiveness: if a mark is strong — either inherently distinctive or commercially strong — then many top search results for that mark relate to the source it identifies. The extent of results overlap between searches for two different marks can also be relevant for assessing the likelihood of confusion of those marks. In the cases where Google and the court disagree, I argue that Google more accurately reflects how consumers view a given mark. Courts have generally given online search results little weight in offline trademark disputes. But the key factual questions in these cases depend on the wisdom of the crowds, making Google’s “algorithmic authority” highly probative.

Number of Pages in PDF File: 58

Keywords: trademark, algorithms, search engines, distinctiveness, secondary meaning, confusion

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Date posted: January 3, 2013 ; Last revised: March 22, 2014

Suggested Citation

Ouellette, Lisa Larrimore, The Google Shortcut to Trademark Law (February 8, 2013). California Law Review, Vol. 102, p. 351, 2014. Available at SSRN: https://ssrn.com/abstract=2195989 or http://dx.doi.org/10.2139/ssrn.2195989

Contact Information

Lisa Larrimore Ouellette (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305
United States
HOME PAGE: http://law.stanford.edu/profile/lisa-larrimore-ouellette

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