@Victor

You make some strong arguments. I guess it would be interesting to see if the US Supreme Court will take up this case. It reminds me of the still not totally resolved issue of the Pharmaceutical Patents..The practice is to expire the patent after 30 years and let the world make generic drugs.. The industry has been fighting it for years yet its a double edged sword.

As for Google, this story started when some guy decided to 'cybersquat' (sort of..). I bet someone at Google is currently wondering whether they should have let that particular dog lie with its fleas..Unfortunately they awoke the dog and spread the fleas all over!! 

Regards

Ali Hussein

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Hussein & Associates

 

Tel: +254 713 601113

Twitter: @AliHKassim

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Any information of a personal nature expressed in this email are purely mine and do not necessarily reflect the official positions of the organizations that I work with.

On Mon, Aug 21, 2017 at 9:30 PM, Victor Kapiyo via kictanet <kictanet@lists.kictanet.or.ke> wrote:
The distinction between Google and OMO, ASPIRIN and the rest is that it (Google) refers to a service, unlike the rest that refer to goods. In any case the applicable rules are still the same. 

Most of the time, the term 'google' or 'googling' refers to searching for stuff online on a Google search page or engine. I am yet to hear someone googling on Yahoo, Bing or Yandex etc. It's the same for 'facebooking', 'whatsapping' or 'tweeting' which despite almost having generic usage, are still specific to those products. 

The test that is applied is whether the mark has become synonymous with the goods/services in that class, such that by the use of the mark other businesses with products in the same class would be unable to do business. You see a mark like THERMOS became synonymous with vacuum flasks, such that even if you had another brand called YELLOW and put it out for sale, it would be described as a YELLOW Thermos.

For products like OMO, you'll notice that the company beat the genericization by changing the colour of the product, coupled with aggressive marketing and several rebrands. The competitors e.g. TOSS, ARIEL, SUNLIGHT etc also did the same to distinguish their products from OMO. Google's competitors in the search market haven't been disadvantaged by the use of the term, save for the fact that people think Google has a better product. 

IMHO, I don't think Google has reached that part where they let their brand go yet, and I'm sure they won't sit on their laurels and watch as their coveted $100 billion brand gets genericized.

Victor


On 21 Aug 2017 8:05 pm, "anyega jefferson via kictanet" <kictanet@lists.kictanet.or.ke> wrote:
Wikipedia is not a good source to rely on.
The Google team can argue about their investment and reliance on the name for their business.
The U.S Supreme Court has a conservative majority, very protective of corporations from past cases I have seen.

On Mon, Aug 21, 2017 at 7:40 PM, Ngigi Waithaka via kictanet <kictanet@lists.kictanet.or.ke> wrote:
The Google case is very different from these cases; as-is, "google" is already an English verb. And once a trademark becomes a verb and hence generic, it's downhill all the way.

OMO, BLUEBAND etc while coming to symbolize an entire genre of products never reached that level of getting into the lexicon of the English language.

I didn't come up with the rules, its just the way it works :-)
https://en.wikipedia.org/wiki/List_of_generic_and_genericized_trademarks

Regards




On Mon, Aug 21, 2017 at 6:11 PM, Victor Kapiyo <vkapiyo@gmail.com> wrote:
We have had almost similar scenarios in Kenya. You will remember brands like "OMO" which became the common name for powdered soap; "BLUEBAND" for magarines; "KIMBO" for cooking fat; "QUENCHER" for juices; "NISSAN" for all 11-14 seater vans/matatus; "PAMPERS" for diapers; "COLGATE" for toothpaste; "PANGA" for bar soap and the list goes on. Just because a trade mark (and we must distinguish this from copyright) has become the common name for a product or service for which it is registered, doesn't mean it will lose the protection. However, the protection will only available to the owner of the mark so long as they have taken sufficient measures to protect it. 

Because otherwise, of what use is trademark protection if the owners can't benefit from the publicity and notoriety their product has received and profit from it!  

Victor Kapiyo
Partner | Lawmark Partners LLP
Advocate of the High Court of Kenya & Commissioner for Oaths
Suite No. 8, Centro House, Westlands, Nairobi | Web: www.lawmark.co.ke 
====================================================
“Your attitude, not your aptitude, will determine your altitude” Zig Ziglar


On 21 August 2017 at 17:49, Ngigi Waithaka via kictanet <kictanet@lists.kictanet.or.ke> wrote:
The moment your copyright becomes a verb in English, you've lost half the battle to holding onto it.

Today its very normal to just say I *googled*  as opposed to "...I searched for it on Google..."

And I am sure you wouldn't want everyone saying googled/google it etc being sued for Copyright infringement, right?

Regards

On Mon, Aug 21, 2017 at 4:29 PM, Ahmed Mohamed Maawy via kictanet <kictanet@lists.kictanet.or.ke> wrote:
I think its quite unfair to have a company like Google who have built a brand name that went all the way to be "generisized" to actually not be given the right to trademark. So what implications does it have then to their company? I mean.. you can't just say someone set up a company and called it "Sufuria".

Plus also Google is not just search but a varierty of products. All unrelated to Search. But the implications of this are even further than this. Does it mean that when you open DuckDuckGo or MSN search youd end up seeing "DuckDuckGo Google" or "MSN Google"?

To make matters worse lets not even think about Google to begin with and start thinking about what people will say about "Alphabet"... :D


On Mon, Aug 21, 2017 at 3:45 PM, Ali Hussein via kictanet <kictanet@lists.kictanet.or.ke> wrote:
Listers

Interesting development.

Is the term "google" too generic and therefore unworthy of its trademark protection? That's the question before the US Supreme Court.

Words like teleprompter, thermos, hoover, aspirin, and videotape were once trademarked. They lost the status after their names became too generic and fell victim to what is known as "genericide."

What's before the Supreme Court is a trademark lawsuit that Google already defeated in a lower court. The lawsuit claims that Google should no longer be trademarked because the word "google" is synonymous to the public with the term "search the Internet."

US Supreme Court asked to nullify the Google trademark

What are the implications in the Kenyan context?

Have you heard guys using Airtel Money saying 'Mpesa me please?' :-)

Should governments even think about this? It's ludicrous that we are even discussing this.. :-)

Ali Hussein

Principal

Hussein & Associates

 

Tel: +254 713 601113

Twitter: @AliHKassim

Skype: abu-jomo

LinkedIn: http://ke.linkedin.com/in/alihkassim


13th Floor , Delta Towers, Oracle Wing,

Chiromo Road, Westlands,

Nairobi, Kenya.


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