October 18, 2018

Google Fights Genericide Claim (and Wins)

Google’s famous trademark in its name has just survived a challenger’s attempt to have it declared generic. In Elliott v. Google, a federal court in Arizona held last week that despite the public’s use of the word “googling” to mean “searching on the Internet,” the “Google” word mark still functions in the minds of consumers primarily to identify Google, the Mountain View-based Internet company, as the source of the search service associated with the “Google” mark. The plaintiff in the case argued that the public’s use of a trademark as a verb necessarily signifies that the mark has become generic. The court disagreed:

Verb use of a trademark is not fundamentally incapable of identifying a producer or denoting source. A mark can be used as a verb in a discriminate sense so as to refer to an activity with a particular product or service, e.g., “I will PHOTOSHOP the image” could mean the act of manipulating an image by using the trademarked Photoshop graphics editing software developed and sold by Adobe Systems. This discriminate mark-as-verb usage clearly performs the statutory source-denoting function of a trademark.

The court went on to explain that a problem arises for a mark owner only if mark-as-verb usage is indiscriminate, and the mark becomes referentially unmoored in the public’s mind from the mark owner’s product or service.

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Google Spain and the “Right to Be Forgotten”

The European Court of Justice (CJEU) has decided the Google Spain case, which involves the “right to be forgotten” on the Internet. The case was brought by Mario Costeja González, a lawyer who, back in 1998, had unpaid debts that resulted in the attachment and public auction of his real estate. Notices of the auctions, including Mr. Costeja’s name, were published in a Spanish newspaper that was later made available online. Google indexed the newspaper’s website, and links to pages containing the announcements appeared in search results when Mr. Costeja’s name was queried. After failing in his effort to have the newspaper publisher remove the announcements from its website, Mr. Costeja asked Google not to return search results relating to the auction. Google refused, and Mr. Costeja filed a complaint with Spanish data protection authorities, the AEPD. In 2010, the AEPD ordered Google to de-index the pages. In the same ruling, the AEPD declined to order the newspaper publisher to take any action concerning the primary content, because the publication of the information by the press was legally justified. In other words, it was legal in the AEPD’s view for the newspaper to publish the information but a violation of privacy law for Google to help people find it. Google appealed the AEPD’s decision, and the appeal was referred by the Spanish court to the CJEU for a decision on whether Google’s publication of the search results violates the EU Data Protection Directive.
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Your TV is spying on you, and what you can do about it

A recent UK observer with a packet sniffer noticed that his LG “smart” TV was sending all his viewing habits back to an LG server. This included filenames from an external USB disk. Add this atop observations that Samsung’s 2012-era “smart” TVs were riddled with security holes. (No word yet on the 2013 edition.)

What’s going on here? Mostly it’s just incompetence. Somebody thought it was a good idea to build these TVs with all these features and nobody ever said “maybe we need some security people on the design team to make sure we don’t have a problem”, much less “maybe all this data flowing from the TV to us constitutes a massive violation of our customers’ privacy that will land us in legal hot water.” The deep issue here is that it’s relatively easy to build something that works, but it’s significantly harder to build something that’s secure and respects privacy.
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