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.

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Stephen T. Stone (profile) says:

Re:

Question: If a racist conservative gets kicked off Twitter for posting racial slurs in the replies to Black users, were they kicked off for being a racist or for being a conservative? If you think it’s the latter, you have other questions you may to ask yourself — and they’ll be much harder to answer.

This comment has been deemed insightful by the community.
Mike Masnick (profile) says:

Re: We get it!

We fully understand that leftists want all conservatives muzzled.

Can you explain what in the filing has anything whatsoever to do with that?

Also, bullshit. No one wants "all conservatives" muzzled. Why do you Trumpist jackasses need to just make shit up all the time?

Anonymous Coward says:

Re: We get it!

"We fully understand that leftists want all conservatives muzzled.
That is blatantly obvious and progressives will do whatever it takes to make it happen."

Who is we?
What is a leftist?
All conservatives?
Muzzled … what, did they bite someone?
If it is so obvious, why do most sane folk not see it?
Whatever it takes … yeah, all that scientific research is just so stupid – right?

stine says:

re: wolfram alpha

Apparently the DoJ only uses Google Search, which is probably written into one of their official computer hardening documents…

Alphabet, you should ask for a copy of their computer hardening documents, specifically in relation to standard sofware load information. If you’re fortunate, it will contain "install Google Chrome and set it as the default browser…"

zeeri (profile) says:

Not quite

Your initial argument that the complaint alleges no competitors while suggesting the competitors are used when “googling” has a flaw in that a “monopoly” can be achieved while still having competitors. I believe you had used this argument in a previous article. Competitors can exist, but not be frequently used, giving the company monopoly powers over the market without being a literal monopoly.

Of course I agree that the litigation is ridiculous. If the government is so concerned about monopolies ruining our economy I think they should go after the low hanging fruit first. There is so much of it these days, it would be hard to know where to start.

This comment has been deemed insightful by the community.
zeeri (profile) says:

Not quite

Your initial argument that the complaint alleges no competitors while suggesting the competitors are used when “googling” has a flaw in that a “monopoly” can be achieved while still having competitors. I believe you had used this argument in a previous article. Competitors can exist, but not be frequently used, giving the company monopoly powers over the market without being a literal monopoly.

Of course I agree that the litigation is ridiculous. If the government is so concerned about monopolies ruining our economy I think they should go after the low hanging fruit first. There is so much of it these days, it would be hard to know where to start.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Not quite

If the government is so concerned about monopolies ruining our economy I think they should go after the low hanging fruit first. There is so much of it these days, it would be hard to know where to start.

Yeah, that’s one of the big problems with this in that the complete and utter indifference(if not active support) to monopolies in the recent and not so recent past expose to anyone familiar with the subject that this has nothing to do with concern over Google’s claimed ‘monopoly’ and everything to do with riling up the gullible with a juicy political stunt close to election day.

This is a DOJ whose ‘anti-trust’ boss Makan Delrahim actively and personally assisted in and pushed for the T-Mobile/Sprint merger, a merger that violated all of the DOJ’s own ‘updated’ guidelines on mergers that were released afterwards and celebrated by Makan himself, and who ignored all evidence presented as to why the merger would be terrible for the public, so the idea that they care about monopoly powers of companies and it’s just a complete coincidence that their first target is a company in an industry that Trump and his cult have been holding up as the great evil boogieman, with the timing just another coincidence, is one that is literally unbelievable.

Anonymous Coward says:

Re: Not quite

"Competitors can exist, but not be frequently used, giving the company monopoly powers over the market without being a literal monopoly."

monopoly powers but is not a monopoly
Seems a bit undefined to me.

"If the government is so concerned about monopolies ruining our economy I think they should go after the low hanging fruit first. There is so much of it these days, it would be hard to know where to start."

The only concern they have is when they lose their grip and have to squeeze harder, oh wait – they don’t care at all.

Wait … go after white collar crime? Unheard of, what are you some sort of commie?

This comment has been deemed insightful by the community.
Tim R (profile) says:

I’m a little confused about this "barrier to entry" argument. How exactly is Google preventing others from competing? Does it have a patent on the robots.txt file, that it can exclude everybody else’s crawlers? Does it tell web sites to deny entry to all but Google’s own search agent?

I think somebody is confusing "barrier to entry" with "barrier to popularity". They say in their own motion, "[t]he creation, maintenance, and growth of a general search engine requires a significant capital investment, highly complex technology, access to effective distribution, and adequate scale." Did Google just conjure all of that out of thin air? No, they worked their asses off to develop it, and hired some of the best and brightest minds to implement it. Microsoft did the same thing, but spent way too much time shooting itself in the foot with some of its implementation decisions. That’s why Bing doesn’t have as much of a market share. And that’s even after trying to ram their product down everybody’s throats through their browser. Say what you will about the company itself, Google just creates a better product, even with all its warts.

Where you differentiate yourself is in value added services. Duck Duck Go is a perfect example. According to the DOJ, they have about a 2% market share. But hell, until Android came around, Linux never had a 2% market share in operating systems, and it had been around for a couple of decades at that point. So to be a new company and only single digits behind 800-lb gorilla Microsoft means you must be keeping things interesting. In their case, it’s the privacy angle.

So DOJ, don’t confuse barrier to entry with barrier to create a product that anybody’s interested in.

James Burkhardt (profile) says:

Re: Re:

Its the Natural monopoly argument – where financial barriers to entry into the search market (coding an algorithm, creating and maintaining an indexed database, bandwidth costs, marketing to attract users all cost lots of money) are compounded by an inability to grow the pie (everyone who needs internet search is already using a search engine) and slow returns on investment preclude traditional fundraising methods (you are unlikely to make money fast enough for investors to fund your project), the likelihood of a direct competitor even making it to market, let alone surviving to capture a market share big enough to make a profit is slim.

Its the reason utility regulation exists, to manage markets where forcing competition will not improve the market, and so we allow the monopoly and instead manage the harms of said monopoly.

I’m not sure why a reader of this site would be unfamilliar with financial barriers to entry as its a huge problem in the cable industry.

That One Guy (profile) says:

Re: Re: Re:

Its the reason utility regulation exists, to manage markets where forcing competition will not improve the market, and so we allow the monopoly and instead manage the harms of said monopoly.

That’s part of it but primarily utilities regulation exists because it’s not physically feasible(or even possible at times) to have multiple sets of water pipes, multiple sets of telephone poles, multiple sets of wires for electrical service and so on, something that isn’t the case when it comes to purely digital offerings.

This comment has been deemed insightful by the community.
Tim R (profile) says:

Re: Re: Re:

Funny, I seem to remember the same comments about IBM back in the day. And Oracle. And Microsoft. And the big three TV networks. And Lotus spreadsheets. And Atari. And Clear Channel Radio. Companies that were too big or too popular to fail, and not all of them did. Everybody just stopped caring about them as much, as the next big thing whizzed by and took up the lead.

Relevance comes and goes at it’s own leisure, no matter how much money you throw at it. A funny thing happens when you fight your way to the top: you get complacent about doing what it takes to stay there.

Whether or not you split up Google, sooner or later, some new kid on the block is gonna knock them off their mighty perch with the next killer app. Anybody who doesn’t see that kind of cyclical process in tech hasn’t been paying attention for the last 50 years. The wheels of justice aren’t the only wheels that grind slowly.

This comment has been deemed insightful by the community.
Eric says:

Only 4....

"There are currently only four meaningful general search providers in this market:" ….umm compared to recent allowed merges in the wireless phone space this sounds like an amazing amount of competition to me, kind of funny they threw this number in there as if 4 was too small.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Only 4....

It does seem to provide a perfect way for Google to highlight the hypocritical absurdity involved though.

‘We have too much power you say? Alright, how about we create a new search engine, separate from the main company, that will definitely grow to be a meaningful competitor despite the fact that we’ll only be throwing the equivalent of table scraps at it. That was good enough for the recent T-Mobile/Sprint merger that you were all in favor of after all, so it should be good enough for us.’

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