Monthly Archives - June 2017

On Tuesday June 27, 2017, Google was hit with a $2.7 Billion antitrust fine by European Union regulators. This is the largest fine issued by the EU for an antitrust case. After a seven-year investigation, Google was charged with favoring its own products on its Google shopping page and for disfavoring its competitors by pushing them farther down the search results. “It denied other companies the chance to compete on the merits and to innovate.  And most importantly, it denied European consumers a genuine choice of services and the full benefits of innovation,” said European Competition Commissioner Margrethe Vestager.  Google has been given ninety days to correct is shopping services search results or receive additional fines.  There are currently two other charges being investigated. For advertisers in the EU, this could result in the need to develop a new advertising strategy. Advertising on Google is competitive and participants put in a great deal of thought, time and money into building these strategies. Advertisers that currently have a system that is working for them may find it necessary to update or alter their strategy after Google implements the required changes with respect to its products and its rivals’. Google’s rivals, however, should see improvement in their advertising strategies once the mandatory alterations have been implemented. It is likely that Google will appeal this decision. The current ruling could allow for private litigants to try to obtain damages through their national court. And in light of the two additional charges that are being looked into, Google is unlikely to accept the EU decision without a fight. Currently, it is unclear what this will mean for those who utilize Google shopping in the US. There have been complaints about Google’s ranking methods from its US rivals in the past. This ruling could be seen as an opportunity for those rivals to make moves into Google’s backyard. Google has dominated the search engine market for some time now and it is unlikely that this decision will cause consumers to start using another site anytime soon. However, this does not mean that users are willing to just accept search results that are now known to have been tampered with, especially when Google has a personal stake in the rankings. In summary as stated by the EU regulators, “But Google's strategy for its comparison shopping service wasn't just about attracting customers. It wasn't just about making its product better than its rivals. Google has abused its market dominance in its search engine by promoting its own shopping comparison site in its search results and demoting its competitors.”

On June 19, 2017, the Supreme Court concluded that the disparagement clause of the Trademark Act violates the Free Speech Clause of the First Amendment.  The heart of the issue comes down to whether or not a restriction on disparaging marks is a violation of the First Amendment and frankly, the answer is yes. The Government offered explanation by way of public policy and interest. However, the Supreme Court remained firm in the idea that principal of freedom of speech means the freedom to express our ideas and opinions, even if they are negative. In light of this ruling by the Court, applicant’s seeking Trademark registration for a particular offensive mark, no longer need to be weary of the USPTO rejecting their application for fears of violating the disparagement clause.  Additionally, a Trademark Attorney consulting with their client on selecting a particular mark for registration, need not be as restrictive in eliminating potential marks that would most likely have been rejected prior to this ruling.  The Supreme Court has firmly supported a trademark owner’s right to register a mark, no matter how offensive, as long as it meets the minimum requirements of filing under the Trademark Act.  In turn, a mark may no longer be rejected merely because it expresses a negative viewpoint. For some, this case comes as a huge win in that the ruling eliminates a potentially large obstacle in the trademark registration process. Most notably, the Washington Redskins, may find themselves benefiting from this ruling immensely as they are currently appealing the cancellation of their marks based on the disparagement clause.  The team has been fighting to keep their registrations alive for several years now, arguing against a finding that their long used trademarks are a violation of the disparagement clause.  Thus, with the current ruling, this should pave the way for their registrations to remain in force. For others, this ruling comes as a devastating loss. The decision grants applicants the right to receive protection and to use in commerce marks that are offensive, hateful and derogatory. For those on the receiving end of this type of language, seeing these types of marks used in public is a disturbing thought, let alone allowing a Trademark owner to enforce the rights granted to them with a Federal Trademark Registration. In conclusion, an excerpt from Justice Alito’s opinion as noted below demonstrates the balancing act required in addressing free speech concerns: “But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”