Trademark Genericide And One Big Way The DOJ Admits That Its Antitrust Lawsuit Against Google Is Utter Garbage
from the admitting-their-own-bullshit dept
Don’t misread the title of this post to think there’s only one thing wrong with the DOJ’s antitrust complaint against Google. There’s plenty. But on the list is this particular self-defeating argument included in the complaint — the complaint where the DOJ basically has but one job: show that Google is a monopoly.
To understand it, we need to first understand the idea of “trademark genericide.” That’s what happens when your brand name is, well, just too good and people start using your branding as the default word to describe the product or service in general. Famous examples include “Band-Aid,” “Thermos,” “Xerox,” and plenty of other words we’re all used to using in lower-case form to describe things that aren’t actually produced by the companies that had those trademarks.
The issue here is not actually whether Google has lost its trademark rights due to genericide, which is a technical question particular to the operation of trademark law and not relevant to the issues raised here. The DOJ isn’t actually arguing that Google has anyway. But what it is arguing is that the same basic dynamic has occurred, where the branded name has become a widely adopted synonym to describe other people’s similar goods and services. However, in doing so, it has blown up its own argument because that means there are other similar goods and services. Which means that Google is not a monopoly.
Look at what it argued (emphasis added):
Google has thus foreclosed competition for internet search. General search engine competitors are denied vital distribution, scale, and product recognition?ensuring they have no real chance to challenge Google. Google is so dominant that ?Google? is not only a noun to identify the company and the Google search engine but also a verb that means to search the internet. [complaint p. 4]
This argument makes no sense. On the one hand it asserts that Google has foreclosed competition for Internet search, and in almost the next breath it asserts (and as an attempt at proving the first assertion, bizarrely) that “Google” has now become the generic word for Internet searching offered by everyone. If “Google” is now being used by consumers to describe the use of competing goods and services, it means that there are competing goods and services. Ergo, Google is not a monopoly, and thus the alleged premise for bringing this antitrust action is unsound.
There are, of course, many reasons why this antitrust action against Google is unsound, but it does seem odd that the DOJ would so candidly confess such a notable one in the introduction of its own complaint.
Especially because even the DOJ itself admitted later in the complaint that there are actually competing search engines, namely Bing, Yahoo, and DuckDuckGo.
Google has monopoly power in the United States general search services market. There are currently only four meaningful general search providers in this market: Google, Bing, Yahoo!, and DuckDuckGo. According to public data sources, Google today dominates the market with approximately 88 percent market share, followed far behind by Bing with about seven percent, Yahoo! with less than four percent, and DuckDuckGo with less than two percent. [p. 29]
But the argument it made in this later section to try to wish away the import of these competitors did not do much better than the previous one in the logic department.
There are significant barriers to entry in general search services. The creation, maintenance, and growth of a general search engine requires a significant capital investment, highly complex technology, access to effective distribution, and adequate scale. For that reason, only two U.S. firms?Google and Microsoft?maintain a comprehensive search index, which is just a single, albeit fundamental, component of a general search engine. Scale is also a significant barrier to entry. Scale affects a general search engine?s ability to deliver a quality search experience. The scale needed to successfully compete today is greater than ever. Google?s anticompetitive conduct effectively eliminates rivals? ability to build the scale necessary to compete. Google?s large and durable market share and the significant barriers to entry in general search services demonstrate Google?s monopoly power in the United States. [p. 31]
Once again, the DOJ has managed to swing and miss in trying to argue that Google is a monopoly with its rushed and unthoughtful lawyering. Google obviously isn’t, not with actual competitors, and the DOJ’s apparent fallback argument of it being a monopoly somehow due to monopolistic effect similarly fails. It whines that scale is important for a search engine’s success, and that there are significant barriers to entry to becoming a competitive player in the search engine space. But the DOJ offers nothing more than “it must be antitrust!” to hand-wave away why Google has managed to succeed better than its rivals, including rivals like Yahoo that had entered the market long before Google (and for whom barriers to entry should not have been an issue), and rivals like Microsoft (which the DOJ acknowledges is able to achieve the same scale as Google). The market has had choices?choices that even the DOJ cannot ignore, no matter how much it is desperate to because of how their existence undermines its case.
And so with the “la-la-la-I-can’t-hear-you” approach to antitrust enforcement the DOJ tries to wish these inconvenient facts away, arguing that Google’s size and share of the market somehow magically evinces an antitrust violation, with little more support than “because we said so.”
Which is not nearly a good enough basis for this sort of extraordinary action.