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.