Tuesday, January 12, 2010

Does Google Dream of Electric Sheep

Now here's a good case for learning a simple lesson about Trademark law.

The lesson: Trademark is not automatic.

Copyright is automatic. As soon as you put it down on paper (or other media "fixed" in tangible form) your right begins.
Trademark is a different beast. The first thing to realize is that legal protection does not begin as soon as you create the mark. The second thing to realize is that it doesn't begin with registering the mark either. Registering a trademark is a good idea because should you have a dispute over it, having it registered gives you numerous advantages. However, it has to be a valid mark before you can register it.

So how does a mark become a valid trademark? By using it in trade (or commerce if you prefer).
The basic concept of a trademark is that it identifies your goods to potential customers. Clear examples of trademarks are the swoosh that tells you it's a Nike shoe, or the golden arches that tell you a certain clown is pedaling ground beef and related food items. To register a mark, you must either already be using it for something you are selling, or you must have a sincere intent to use it within a very short period.

That brings us to the case of Blade Runner and Google's phone.
Nexus One
If you haven't seen the movie Blade Runner, based on the book "Do Androids Dream of Electric Sheep" by Philip K . Dick, staring Harrison Ford and Rutger Hauer (with excellent supporting roles by Brion James, Daryl Hannah, William Sanderson and others, and directed by Ridley Scott) then stop reading this blog and go watch it.

waits . . .

Now that you've seen it, you know that the renegade androids are Nexus-6. And Nexus One uses Android software. Hmmmmm. Coincidence?
Most likely yes.
I don't know why Google chose to call it's phone software "android" but given the sci-fi feel of the whole phone industry it's not ridiculous (or even particularly imaginative). Google explains why they called the phone "nexus" since it's supposed to be a nexus between your phone and your computer. One? well it's the first edition.

Android literally means "of the species of man" or "man-like". Its use goes back at least as far as the 13th century German theologian Albertus Magnus. In a popular 19th century French novel called "The Future Eve" or "L'Ève future", a character based on Thomas Edison invents an artificial woman to replace his best friend's fiancee.
The term "android" to depict a replica human is pretty clearly not a protectable use. A quick search of the USPTO shows 63 registrations of "android" - only 19 are live registrations that actually include the word android in the mark.
Google is one of them, but that doesn't mean they have a protected mark. A live registration is simply one that has not been denied or abandoned. That doesn't mean it's been approved.
Google's application is being stayed pending the outcome of a law suit in Illinois.
The Android’s Dungeon Incorporated sued Google for trademark infringement:
Specht, et al. v. Google Inc.

So now Google is facing another problem with trademarks, with threats coming regarding "Nexus One."
They don't have much to worry about though. As I explained, you have to use a mark to identify a product in order to get protection. "Nexus-6" is certainly similar to "Nexus One" but there's nothing to indicate Nexus-6 was ever used to mark a product. Not in this world anyway. In the fictional world within the novel it is actually the trademark name of the androids. But the law operates in this world. If Google had called their phone the "electric sheep" there might be a case, since that's a clear lifting from the title of the novel, and the title certainly identifies the product (the book) to buyers. But even if Google had intentionally lifted a term out of the text of the novel (provided it wasn't a copyright violation) they still would likely prevail in a trademark case.

In the end this is probably a non-story, but it does illustrate the concept that use does not provide trademark protection, only use in commerce does.

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