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Judge Tells Uber to Do the Impossible: Control Its Google Results

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By Casey C. Sullivan, Esq. on February 19, 2016 12:00 PM

A trademark dispute in Florida has resulted in a decidedly curious court order. To prevent confusion between Uber Promotions, a Gainesville area limo service, and Uber, the controversial ride sharing company, a federal judge in the Sunshine State says Uber the ride sharing company has to control just what comes up in Google, Yahoo, or Bing search engine results.

That, however, is not as easy as it sounds. It's not even possible.

No One Controls Google but Google

When it comes to finding things on the Internet, Google is unquestionably in control. It controls nearly 70 percent of the search engine market in the United States and almost all of it in Europe. But Google is a mysterious, fickle ruler, with whole industries and thousands of professionals dedicated to gaming Google's opaque ranking algorithms. (Those professionals are called SEO specialists, but they're essentially website witch doctors.)

Which is what makes the order by Judge Mark E. Walker of the Northern District of Florida so ... optimistic? Naive? Untenable? In order to prevent customers confusing Uber Promotions and Uber, a more recent arrival in Gainesville, when searching for a ride, Judge Walker has commanded that Uber:

ensure that a search conducted with the Google, Yahoo, or Bing search engine using the keywords 'Uber Gainesville phone' or 'Uber Gainesville phone number' returns a result containing [Uber's] 352-area-code number along with words clearly indicating that the result is associated with [Uber].

The problem here is that Google, Yahoo, and Bing are not parties to the suit and Uber can do little to nothing to actually "ensure" that the court's preferred search results come up in response to a particular search.

Can't Make It on AdWords Alone

The judge's comment that "compliance may entail using the search engine's paid advertisement features," seems to overestimate the strength of Google AdWords in controlling search results. As Eric Goldman writes in the Technology and Marketing Law Blog, AdWords can influence some results but it cannot ensure them, as AdWords will often show results when only some selected keywords are triggered.

The result seems predestined. Goldman writes:

It seems inevitable that Uber Promotions will capture screen shots showing Uber Technologies out of compliance with this injunction. So what will Uber Technologies do? Will it go back to the judge now and explain why it can't ensure these outcomes? Or will Uber give it a good faith try and gamble that the judge won't hold it in contempt if search results inevitably fall out of compliance with the order?

I guess we, and Uber, will have to wait and see.

Oh, and There Was That Squirrel...

While waiting, keep this image from Judge Walker's decision in mind. It's some of the most creative legal writing we've seen in a long time:

To slightly tweak a metaphor offered by this Court during the hearing, a preliminary injunction should not serve as a ba-zooka in the hands of a squirrel, used to extract from a more fear-some animal a bounty which the squirrel would never be able to gather by his own labors -- at least not when the larger animal is mostly without sin.

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