• by Wendy Davis  @wendyndavis, August 18, 2017

Two entrepreneurs are asking the Supreme Court to decide whether Google should lose its trademark on the grounds that people now use the company's name as a verb.

"The word 'google' has been used ubiquitously as a verb meaning to search for something on the internet for at least the last decade," lawyers for David Elliott and Chris Gillespie write in a Supreme Court petition unveiled Thursday.

They are urging the court to hear an appeal of a recent decision by the 9th Circuit Court of Appeals, which ruled in May that the word "Google" had not become too generic for a trademark.

The battle dates to 2012, when Elliott and and Gillespie sought to invalidate Google's trademark. In March of that year, they purchased 763 domain names that incorporated the word “google” in them, like googledisney.com and googlegeorgeclooney.com.

Elliot and Gillespie argued that the word "Google" had become a "generic name" for "the act of an online search.

U.S. District Court Judge Stephen McNamee in Arizona ruled against them, stating that Google could serve as a trademark regardless of the public's use of the term.

The 9th Circuit upheld that ruling. "Verb use does not automatically constitute generic use," the judges wrote.

They added that some people who use the term as a verb may be referring to performing a search on Google's particular search engine.

Elliott and Gillespie now say the Supreme Court should hear the case in order to rule on "the ramifications of verb usage of trademarks."

"Resolution of these unsettled questions is critically important not just to Petitioners and to Google Inc. but also to the owners of the Rollerblade, Xerox, Photoshop, TiVo, FedEx, and Facetime trademarks, among others which have been verbed."

When Elliott and Gillespie first sued, they said they purchased the domain names in order to further an online business that would "promote commerce, community, relationships, personal health, charity and more.”

They also said the business venture would initially target the gay and lesbian community, but would later be broadened.

Google said in court papers that the domains initially took users to TGN.xxx, which promoted sites called “The Gay Network.” The top level domain of “.xxx” indicates the sites would be pornographic. The domains later took users to landing pages populated with pay-per-click ads, according to Google.