Salocin

GMail trademark challenge

Slashdot reports that Google's email service is being challenged in two separate cases regarding it's use of the GMail name. The companies in question are seeking some sort of compensation or negotiated arrangement from Google to compensate them for the fact that Google's using their trademarked name.

This is a bit disingenuous. These companies are unlikely to be suffering any form of economic loss as a consequence of Google's use of the GMail name, and you could make a pretty safe bet that, were GMail not the successful trading name of a multi-billion dollar business, they wouldn't be making such a meal of their claim on the brand. This is a prime example of the law used as a business tool to extract value from another party. An unfortunate side effect of living in a society whose rules are enforced in the courts.

Had you heard of GMail before Google launched it? Unlikely, unless you worked for one of these two companies. The value of that little collection of 5 characters has gone from nothing to something as a consequence of the ground-breaking email service.

You might wonder why these companies are so up-in-arms about the 'infringement' upon their 'intellectual property'. But the reality is that these court cases are mischevous in nature and aim not to protect intellectual property (for which there is no real argument in this case) but to pressure Google into settling the court cases, paying off these individuals to put an end to the harassment.

The law is used more and more as a business tool, and this sort of predatory behaviour is now embarked upon almost every time any major company launches a successful product or brand. "It was mine first" shout numerous unknown entities, point towards obscure, mothballed and little-known elements of their product portfolios. The trick is then to draw attention to the value of the service they are challenging, rather than the worthlessness of their own offering that happens to bear a similar name. This is clear from the reasoning they use in their arguments, they want Google to pay them between £25 and £34 million, which (they helpfully point out) equates to an estimateed 0.5% royalty fee. Of course, what they don't point out is that it's in excess of a million percent of the value of their own assets, that they did nothing to build the service, that the value of the service comes from it's nature and functionality, not its name, and that they have nothing to lose by trying their luck.

Surely the value of the claim should be based on what has been lost, rather than what the other party has gained, as a consequence of their use of the name. The burden of proof for this should also be on the plaintiff.

In truth, neither of these companies can claim that Google's creation of the GMail service damages their products, since there was no real value there to damage. The problem is that Google now has a protracted and distracting legal case on its hands, in two separate geographies, and that in Germany, their aggressor has even managed to secure an injunction to prevent them from extending their use of the name there.

Were Google somehow building on some form of brand equity that these companies had created through their efforts, then I would be more sympathetic to the claims. The reality, however, is that these companies are acting in the spirit of ambulance-chasing: trying to make a claim not because it's justified, but because it might work, and even if it won't, someone might pay them to go away.

The redeeming thing about this story is that Google's attitude to such things - at least historically - has been admirable. I think it more likely that they will take the claim to court if need be, and punish these people for trying, even if it costs them, than capitulate to any unreasonable demands. Let's hope my faith is not misplaced.

Posted by nlvp at September 13, 2005 04:03 PM