Google has become, for the majority of Americans, the index of choice for online information. Through dynamically generated results pages keyed to a near-infinite variety of search terms, Google steers our thoughts and our learning online. It tells us what words mean, what things look like, where to buy things, and who and what is most important to us. Google’s control over “results” constitutes an awesome ability to set the course of human knowledge.
As this paper will explain, fortunes are won and lost based on Google’s results pages, including the fortunes of Google itself. Because Google’s results are so significant to e-commerce activities today, they have already been the subject of substantial litigation. Today’s courtroom disputes over Google’s results are based primarily, though not exclusively, in claims about the requirements of trademark law. This paper will argue that the most powerful trademark doctrines shaping these cases, “initial interest confusion” and “trademark use,” are not up to the task they have been given, but that trademark law must continue to stay engaged with Google’s results.
The current application of “initial interest confusion” to search results represents a hyper-extension of trademark law past the point of its traditional basis in preventing consumer confusion. Courts should reject initial interest confusion doctrine due to its tendency to grant trademark owners rights over search results that could easily operate against the greater public interest. On the other hand, the recent innovation of “trademark use” doctrine improperly relieves trademark law of any role in the supervision of the shape of Google’s search results. The absence of any state involvement in the shape Google’s results will effectively cede the structure of our primary online index to “Google’s law.” Google may enjoy substantial public goodwill, but what is best for Google will not always be what is best for society.
Part I of this article describes the history of Google and its business model. Google is not the only search engine today, but it is the leading search engine in terms of United States market share. Additionally, Google is playing the most important role today in search engine litigation. It is a unique search engine in many respects. During its evolution, Google followed a very different path than many of its competitors. Today its competitors are largely imitating its model, yet are unable to dethrone its centrality in search. Understanding how Google rose to prominence is essential to understanding its motives and how it might act in the future.
Part II of this article sets forth the contemporary law pertaining to search results. It begins with a short discussion of recent (failed) attempts to regulate Google’s results through laws other than trademark. It then describes current theories of trademark law. It concludes by summarizing how trademark law has been applied to search engines, starting with early “meta tag” cases and concluding with Google’s current attempts to insulate itself from liability under an expanded doctrine of “trademark use.”
Part III criticizes the current application of trademark law to search engines. It argues that the judicial innovations of both “initial interest confusion” and “trademark use” are inconsistent with the traditional purpose of trademark law and the new realities of the e-commerce marketplace. It concludes that a simple focus on the “likelihood of confusion” standard, which some courts have already supported, is overdue. It concludes by explaining why, despite the fact that trademark law today will likely permit Google’s current practices, Google’s bid for the carte blanche freedom permitted by “trademark use” doctrine should be rejected by courts. In its relatively new role as a protector of the social value of indices, trademark law must retain the ability to curb potential abuses of the commercial power enjoyed by Google.