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Classic Trademark Fair Use of Google Mark?

Posted in Advertising, Articles, Branding, Fair Use, Genericide, Loss of Rights, Marketing, Trademarks

North Memorial Health must be spending significant advertising dollars at the moment, with a variety of ads appearing all over the Minneapolis skyway system, above is one current example.

In addition, there are a series of humorous and sarcastic TV ads that were designed to poke the bear of our broken health care system, congrats to Brandfire on their creative work here.

The current ad campaign follows the health system’s rebrand and slight truncation earlier this year, from North Memorial Health Care to North Memorial Health:

“The brand campaign consists of TV, out of home, digital and print advertisements. It pokes fun at the industry by showing experiences of customers and attitudes of healthcare that are universally frustrating.  The print and outdoor advertisements also demonstrate that North Memorial Health accepts its share of the blame, but commits to working harder to deliver an unmatched experience for the customer.”

So, I guess, if patients admit to having Googled their symptons prior to their appointment, they will no longer be scolded for doing so by doctors, nurses, and other health care providers, right?

But, what about the glaring Google reference in the above skyway ad, did North Memorial Health need permission from Google for the gratuitous reference?

You may recall, a few years back I wrote about Google surviving a genericness challenge (Tucker and Jessica have provided updates), drawing attention to possible meanings of the word Google:

“The word google has four possible meanings in this case: (1) a trademark designating the Google search engine; (2) a verb referring to the act of searching on the internet using the Google search engine; (3) a verb referring to the act of searching on the internet using any search engine; and (4) a common descriptive term for search engines in general.”

Seems to me, in the North Memorial Health ad shown above, Google could be understood as the verb meanings in both (2) and (3), as the capitalization doesn’t point uniquely to Google.

There is little doubt that no Google permission is required for the ad, because nominative fair use ought to apply, given the plausible, but not required meaning of the above definition in (2).

More interesting to me though, is the question of whether classic fair use could apply as well to the Google use, given the plausible, but not required meaning of Google in definition (3) above.

If so, I’m not sure I’ve encountered an example or case before where both classic and nominative fair use applied, perhaps this is a first, so what do you really think, without Googling it, of course?