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Google's Trademark Gaffe

According to an article posted on CNET (Nasdaq: CNET  ) on Friday, everyone's favorite initial public offering, Google (Nasdaq: GOOG  ) , ran into yet another fiasco just as its IPO got under way (and no, I am not referring to the Playboy (NYSE: PLA  ) story).

Google, you see, in addition to being one of the nation's most popular search sites, also has an email service in beta testing that promises to become one of the nation's most popular communications media. (How popular is it? Well, people have been scrambling for months to get coveted email addresses on the service -- then logging onto eBay (Nasdaq: EBAY  ) and reselling them!)

Google officially announced its service, called "Gmail," on April 1. Unfortunately, as much as Fools love Google for its steadfast refusal to take itself too seriously, there are some things a company actually should take seriously -- such as U.S. trademark laws, for instance. Google's lawyers apparently decided that these laws were more like "guidelines" and weren't exactly Johnny-on-the-spot about getting their application for the Gmail trademark in to the U.S. Patent and Trademark Office (PTO).

How long did they wait, you ask? Six days. Not exactly an eternity, but plenty long for three other companies to jump ahead of Google and file their own applications for the "Gmail" trademark. Now, the situation is not quite as bad as it sounds -- or as CNET made it sound. True, the PTO considers trademark applications in the order in which they are filed. Also true, Google was last out of the gate in this particular race.

But the most important truth is that who filed first is not the most important factor in U.S. trademark law. The United States is what lawyers call a "first to use" country -- as opposed to a "first to file" country. Without going into too much boring detail, the rule is this: Whoever uses a trademark in its business first has priority on the right to use that trademark -- even if somebody else registers the trademark first. There are a whole lot of legal caveats, exceptions and add-ons to that general rule, but long story short, I don't think there is a huge need to worry that Google will lose its precious Gmail name -- unless one of the other filers also started providing a service called "Gmail" before Google did.

Fool contributor Rich Smith owns no shares in any company mentioned in this article.

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