Originally posted 2005-02-06 11:02:00. Republished by Blog Post Promoter
We blogged a week or so ago (before I got bogged down in this trial — still in progress [UPDATE]) about Google’s trademark challenges. Here’s an excellent, if short, item about how trademark issues could indeed be the Achilles’ Heel of the Google business model.
This is a fundamental question. Search engines work on their ability to recognize content, and trademarks are a conceptually rich sort of content that essentially adds a premium of meaning, association and value to search engine results. [UPDATE: If you really want to get into this, see this article I just bumped into by Eric Goldman, courtesy of Marty's Trademark Blog.] And now we have a simple rent-seeking exercise, right out of the microeconomic theories of Ronald Coase.
In other words, as I have argued here, there is no reason on earth judges — whether French, English or American — should be making these policy decisions. They are legislative in nature, in economic systems set up the way ours are. (As opposed to the imagined universes of the libertarians.) Inconsistency of judicial decisions across jurisdictions only makes this ad hoc, leave-it-to-the-judges approach worse and certainly, as the article suggests, promises to hold down the value of Google’s stock price or at least contribute to its high present volatility — markets abhorring uncertainty, after all.
Google’s name, of course, comes from the concept of a googol – “the mathematical term for a 1 followed by 100 zeros.” Presumably the decimal is after that last zero. I am not suggesting that the brilliant, objective minds of the legislative branches are any better qualified than the philosopher kings of the judiciary at where that dot will eventually be dropped. But at least the politicians answer, on some level, to the democratic process.
Of course, that same process gave us the Sherman Act and its like, which in turn led to decades of judicial management and policymaking relating to large parts of the economy. Remember that the Sherman Act has been virtually untouched, legislatively, from the time of its inception during the adolescence of the Industrial Age in America. Yet what courts have chosen what and what not to do about its enforcement and interpretation (okay, courts and Departments of Justice – and, sometimes, state attorneys general) has largely been a matter of evolutions in judicial fashion. Will the amorphous legal state of IP, in a transjurisdictional regime, experience the same thing? Or will the “new paradigm” of information transparency, combined with an unheard-of low cost of entry, enable the new economy to run around the robes and gavels like digitial quicksilver?
It Googles the mind just to contemplate! And besides the metaphors, it’s real interesting, too!