Reports today of a potential class action lawsuit against Google on behalf of trademark holders in Texas. At issue, apparently, is Google practice of allowing companies to “buy” as search words the trademark of a competitor. Thus, Dell, for example, could pay Google so that when someone searches for “Gateway,” Dell appears high in the search results or a Dell ad appears in the “sponsored links” box.
Apparently, trademark owners say that this “use” of a trademark is violation of their property rights. Audrey Spangenberg, a software company owner who filed the suit, suggested:
It is inappropriate for Google to sell my trademark for a profit. It really misleads our customers and our potential customers.
The theory here would be that a company has invested in the creation of its brand identity (which “exists” in the minds of all of us out here who recognize the trademark and have particular associations with it) and that the other company is profiting from the use of this “thing” that the trademark owner has built. The word itself is physically in an index on the Google server and when the user types it in an action is triggered and this action is potentially profitable to the other company.
(She uses the word “misleads” here because that’s a key concept in the law of trademarks — more on this idea below.)
That’s fine as far as it goes, but it makes a mistake that is common in conversations about trademark, copyright, brand identity, and so on. And that mistake is forgetting to think about the substance, the “thing-ness” that’s of value. That substance is an association in my head, in all our heads. If, as a consumer, I do a search for “Gateway,” it is likely that I am looking for, say, a personal computer. Fortunately for Gateway Corporation, I have some association in my head between this category (what I am actually looking for) and their trademark. But what I am trying to do is get the best deal on the best computer I can find. I use a search tool called Google to pursue my goal. Will Gateway begrudge me the use of my association between their trademark and the category I’m looking for? The fact that I use “Gateway” as a gateway to “good computer”? Do they really want to suggest that my association of their trademark with a generic category should serve to obscure, in practice, other entities in that category? And that if it does not do that — if it, in fact, leads me into the very marketplace where I can find out who else sells computers — that it is misleading me? Do they think they own my associations? Do I mislead myself by using their trademark as a lever with which to locate many things in the category of interest to me?
In fact, I think they are renting my associations and they should be paying me for their use. Their entire “brand identity” (the value of which, by the way, they are allowed to put on their balance sheet as an asset) exists in our heads. Is my slipping and saying “xerox” instead of photocopy a whole lot different from putting a xerox logo on my car? They might pay me for the latter, but not for the former.
Why is any of this important for a sociology of information? Because figuring out what kind of property different types of information represent is a big project for the 21st century. A significant portion of the information that is valuable to corporations resides in consumer interest, practice, and their social networks. The social, in other words, is creating a lot of the value of information.
Think about this in connection with recent debates about copyright in which it is implied that all the value of, say, a Beatles song, resides in the song itself. If we, collectively lose interest, there’s nothing there at all. If, on the other hand, we hum along, talk about it, dance to it, request it on the radio, play covers of it, etc. then it has value. The record company wants all the value to lie in the thing itself because that’s what they control and that’s what they know how to extract value from. But without the social, they got nuffin’.