Appeals Court Rules Against Google On Keyword Ads

Eric Goldman writes "The Second Circuit Court of Appeals ruled against Google in Rescuecom v. Google (PDF), a trademark infringement lawsuit over Google's keyword advertising practices. The court said: 'The Complaint's allegations that Google's recommendation and sale of Rescuecom's mark to Google's advertisers, so as to trigger the appearance of their advertisements and links in a manner likely to cause consumer confusion when a Google user launches a search of Rescuecom's trademark, properly alleges a claim under the Lanham Act.' While this result hampers Google's ability to end trademark lawsuits early, the case is still at an early stage and Google could still win."

Comments

pretty limited ruling

[Trepidity]

The ruling holds little besides the fact that Google did engage in a "use in commerce" of the trademarks. The Court followed the not hugely surprising line of reasoning that: 1) AdSense is clearly a commercial endeavor; and 2) AdSense clearly uses the trademarks, e.g. in its keyword suggestion tool. Therefore Google's claim, that the case should be dismissed immediately for failing to even fall within the scope of trademark law, was rejected.

Of course, Google's uses may still be perfectly legal. All the court's held is that Google does, as a factual matter, use the trademarks, and does so commercially. The case going forward will decide whether that use was within the scope permitted by trademark law.

Seen the results in action already.

[palegray.net]

I use Google Adwords for targeted marketing campaigns. Try using any well-known trademark in a new campaign; as of a month ago, they started getting much more aggressive about filtering these out. You can't save an ad unit if it contains trademarked phrases. I don't have any problem with this, aside from cases where you're using the trademark with permission. At some point I'm probably going to wind up emailing the Adwords team about cases like this, offering written verification of license to use such terms.

Let's make a comparison...

[dada21]

I'm a consultant. People hire me to ask me questions about areas I am an expert in.

A few months ago, someone called me to ask about a product made by an obscure printer manufacturer, Mutoh. They had problems with some of their hardware and support. They asked me "What else is out there that you recommend?" Since I have expertise in this area, I told them I had some options for them. They hired me, and I offered them good advice.

I was a middle man between Customer A and a competitor to Mutoh (in their case, Mimaki). Should I be sued for Trademark infringement?

Google is a middle man between customers looking for information, and people offering answers to those questions. Mimaki has not paid me to dole out information, but in the case of a relatively free market, many "consultants" are actually commissioned by manufacturers to push their products. This isn't uncommon. If someone goes to an electronics store asking about an HP printer, the salesman MIGHT turn and offer an Epson because of a SPIF or other incentive to sell Epson over HP. It's the customer's responsibility to ask "Are you getting anything additional if I buy an Epson over an HP?"

Google isn't selling anyone's trademarked name, they're allowing two third parties to meet over what party A is looking for and party C might have information over to offer party A in their decision-making process.

If anything, this may actually HELP companies who have competitors buying their trademarked names as keyboards on Google AdWords. It offers reputation to the original company, and they can stake out a claim by promoting it.

Anyone who is afraid of their competition is only afraid because their competition is doing something better, cheaper or faster. Trying to shut down Google AdWords for letting 2 third parties interact over a keyword is going to make your market SMALLER, not bigger.

What a bunch of morons.

Re:Let's make a comparison...

[mysidia]

In this case, the name's not important. The trademark isn't the significant thing here.

HP could have paid them to point out the HP printers any time a customer asks about any type of printer at all, no matter what name.

And more importantly, things are properly labelled. They aren't lying to the customer and saying the HPs are Mutoh printers, that would be confusing.

HP could even pay them to stack up the HP printer boxes on the front of all the shelves, so that to find a Mutoh printer, the customer would have to dig behind the HP printer boxes.

This may be frustrating for Mutoh (and the customer), but it's not trademark that is at issue here, it's product placement deals in general.

Re:Is anybody surprised by this?

[Darkness404]

Um, tell me exactly how this is doing any evil. Because I can search for a trademark (and almost every ordinary word is trademarked to some degree), an ad to the side might advertise a competitors product. Tell me how, by searching for iTunes, and an ad comes up for Amazon MP3 is evil? Sure, arguably the censorship issue is evil, but this trademark thing, it isn't evil, not in the least.