Big tech likes the plan.

U.S. Trademark law provides Big Tech with legal tools to vigorously protect their brands and goodwill. Big Tech takes advantage of these legal tools through aggressive and intimidating pre-litigation and litigation tactics, oftentimes, to the detriment of their competitors. Since trademarks can last in perpetuity8 and relatively few constraints are imposed on trademark owners, Big Tech can vigorously enforce its trademarks against alleged infringers indefinitely. This allows Big Tech to provide an extra layer of everlasting protection to Big Tech “boxes” of information within its relevant market.9 Thus, Big Tech uses trademarks as a weapon to create resilient “boxes” that enclose society. Although the Subcommittee referenced Google’s use of trademark law to prohibit trademarked terms from being used in Google ads,22 there is no indication that trademark issues were the Subcommittee’s focus. Thus, this paper uses the Subcommittee Investigation to explore how Big Tech utilizes trademark law and legal strategies to ruthlessly exploit favorable market conditions and maintain market dominance. 1998, Google launched as a general online search engine23 and has since become the “largest provider of digital advertising, a leading web browser, a dominant mobile operating system, and a major provider of digital mapping, email, cloud computing and voice assistance services.”24 Historically, Google has maintained market dominance by strategically acquiring successful tech companies in competing fields.25 Google is currently the default search provider on 87% of desktop browsers and the majority of mobile devices, thereby dominating the world online search engine market with 87% of U.S. searches and over 92% of searches worldwide.26 By acquiring competing tech companies and establishing itself as the default search engine for most devices, Google has successfully hindered free competition. According to the Subcommittee findings, “[n]o new general search entrant over the last decade has ever accounted for more than 1% of all U.S. searches in any given year,” which provides sufficient evidence of Google’s durable monopoly power. 27 Google’s monopoly power has led to consumer deception and an apparent decrease in quality of Google’s products and services, including Google search results.28 For example, Google’s AdWords, originally launched in 2000 to allow advertisers to pay for “keyword-based ads” to appear alongside Google Search results, has become a tool that Google uses to undermine competition and exploit its monopoly of general online search.29 AdWords users’ bid for the privilege of paying Google an exorbitant amount of money in the hopes that their content might be shown among the top searches in the Google search engine. Over the years, Google has increased the number of ads appearing along with organic search results and has displayed ads and organic results in an inconsistent manner.30 These changes have allowed Google to “extort businesses” to pay higher prices to be able to access. Because Apple installs iOS on all Apple mobile devices and does not allow other mobile device manufacturers to license iOS, Apple controls software distributions on iOS devices.36 Apple’s gatekeeper power over software distribution on iOS devices allows Apple to maintain significant power in the market for mobile operating systems and mobile app stores.37. he foundations of trademark law help Big Tech continue to protect their brands and goodwill among consumers. Trademark law regulates brand names that populate the marketplace, including Google, Apple, and Facebook.55 U.S. Trademark law provides protection to both registered and unregistered marks56 and was developed to (1) incentivize producers to invest in quality; (2) reduce transaction costs, such as consumer search costs, and (3) promote free competition in business and trade.57 A trademark can be “any word, name, symbol, or device, or any combination thereof […] used by a person […] to identify and distinguish his or her goods, including a unique product, from those manufactures or sold by others and indicate the source of the goods, even if that source is unknown. In recent years, Big Tech has engaged in anticompetitive practices that prevent smaller tech companies from entering the market altogether.80 The USPTO has stated in a recent study that a trademark “troll” or “bully” uses its rights to “harass or intimidate other businesses beyond the scope of what that law is reasonably interpreted to permit.”81 Big Tech has “bullied” smaller tech companies by alleging intellectual property theft, blocking. small tech companies from platforms, and essentially driving smaller tech companies out of business.82 Big Tech trademark infringement suits demonstrate how Big Tech manage to prevail (or obtain settlements) in trademark cases simply because they have more resources and money to file meritless or frivolous suits.83 Because smaller and medium sized companies often have less resources and money available to defend against trademark infringement claims (meritless or not), these competitors are bullied by Big Tech to either (1) leave the market or (2) pay Big Tech licensing fees to use their trademark. As competitors become disincentivized from entering the market, Big Tech is further insulated from competition. This insulation emboldens Big Tech to raise its prices for U.S. consumers while also decreasing the quality of the goods or services provided. Thus, even though trademark law is supposed to incentivize consistent levels of quality for trademarked products and services, Big Tech’s exploitative conduct of trademark law effectively allows the opposite to happen. This misleads consumers because they are left with the perception that Big Tech goods (or services) are the highest quality, simply because Big Tech has no other competition that produces products or services of similar or higher quality.