The Stratosphere Lounge Episode 221

Brand names and trademarks: Bill, I’m sorry, but the analogy doesn’t hold. Aspirin was one of the first cases where a trademark was lost (in court) because it entered into the common lexicon. But all that meant was that Bayer (who owned the “Aspirin” brand) no longer had the exclusive right to use the term “Aspirin.” That is, other manufacturers of the drug could put “Aspirin” on their labels, and that does not mean fraud or that they owe Bayer any royalties (or damages) for using the word. This is because Bayer failed to forbid others to use the word on their labels, failed to sue them to make them remove the word, etc.

As a parallel with Google, this would mean that Duck Duck Go could use the word “google” on their search engine website without owing Google any royalties or owing consumers any disclaimer. Your fraud argument is one that Google themselves would make against Duck Duck Go if the latter tried to use the term. That is, they would argue that if Duck Duck Go uses the term “google” on their site, consumers would be misled into believing that they were using Google’s search engine when they weren’t.

In the modern world, this means that if someone uses the term in print, i.e., “he googled it,” without a capital G, then Google’s legal department sends the offender a nastygram, then the person corrects it, and therefore Google maintains its trademark, so Duck Duck Go can’t use the term. (And if the person won’t correct the usage, then Google sues them.) This is called “vigorous defense of trademark,” and it’s why, for example, Lucasfilm shut down all the fanfic videos of Star Wars on Youtube. Under a strict reading of the caselaw at the time, if they hadn’t done so, they might have lost their rights to the term “Star Wars” (i.e., lost the franchise rights).

Not every brand name in your list has actually lost their trademark rights. (And the Coke/coke term for cola is a southern, regional thing. In other parts of the country they use other terms like soda, soda water, pop, etc.)

Your argument about fraud really has nothing to do with genericizing of trademarks. I don’t know what the current court rulings are on these sorts of licenses, but not too long ago they were upheld as valid. Someone who sued Google and Facebook under a fraud theory would have to overcome that, convincing the courts that This Time they’ve gone Too Far. That’s why monopoly/antitrust is often considered the most likely route to Do Something About It.