Tuesday, July 29, 2008

"Cuil it?" I Don't Think So.

When I teach trademark law classes, I always advise that students select strong protectable marks, and the class invariably balks because they want to select marks that suggest or connote something about the goods or services at issue. That, I tell them, is the touchstone of a weak mark, and for examples I look to the Internet space: Google, Yahoo!, Zillow, and so on are perfect trademarks because they say nothing about the goods or services with which they are associated.

And now along comes cuil.com (pronounced "cool"), the much-ballyhooed Google-killer. Great mark, right? "Cuil" says nothing about "Internet search engine," and is in fact apparently an old Irish or Gaelic word for "knowledge." But here's the rub: "Google" is becoming a verb in the lexicon very quickly, which is typically anathema to a trademark, but there's not much Google can do to stop everyone from saying, e.g., "Go Google that." But can you say, e.g., "I am going to 'cuil' it?" You could, but people would hear you say, "I am going to cool it," and the meaning is lost.

Moral--a great trademark has to be both non-descriptive AND sound cool (pun intended) and distinctive. Now let's just see if Google goes the way of "escalator" and becomes generic for Internet search services . . .


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