economics, Dr. Antonio Rangel, opined: “If you have a brand that is so dominant and consumers are not familiar with the others, it’s already at ceiling.” Tr. at 649:19-21 (Rangel).
Record evidence firmly establishes that Google’s brand is widely recognized and valued. FOF ¶¶ 130–131. After all, “Google” is used as a verb. Even on Bing, “google.com” is the number one search. FOF ¶ 132. The “entrenched buyer preferences” enjoyed by Google are a major deterrent to market entry. Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114, 1126 (10th Cir. 2014).
Google’s brand recognition also provides its distribution partners with a powerful incentive to retain Google as the default GSE. FOF ¶ 133. Google considers its brand as a benefit to its contracting partners, incentivizing them to choose Google. See Tr. at 7780:21-23 (Pichai) (“Apple benefits and sells more iPhones by having their brand associated with the quality . . . [of] Google Search.”). The Google brand also benefits from the “seal of approval” it receives from its partners. See id. at 7780:23-24 (Pichai) (“Our brand gets validated by being present as a default in iPhones.”); id. at 2619:24–2620:4 (Cue) (“It’s a great product for our customers, and we wanted our customers to know that they’re getting the Google search engine. I think one of the benefits, for example, that Google gets from Apple is that we are telling the world that Google is the best search engine, because that’s what they would expect Apple to pick.”). This mutuality of branding interests makes market entry that much harder.
To be sure, Google’s brand recognition is due in no small part to its product quality. FOF ¶ 130. But as previously stated, “[t]he defendant’s innocence or blameworthiness . . . has absolutely nothing to do with whether a condition constitutes a barrier to entry” evincing monopoly power. AT&T, 740 F.2d at 1001.
160
