Lawsuit Says Google's Sale of Keywords Is Illegal

Hugh Pickens writes "Google encourages advertisers to purchase other companies' trademarks as targeted search terms, and they're expanding the practice into 190 countries. When Audrey Spangenberg typed the name of her small software company into Google and saw the ads of competitors that had paid Google to display their marketing messages whenever someone searched for FirePond, a registered trademark, she was furious. This week, her company filed a class-action suit against Google in federal court, saying that Google had infringed on her company's trademark, and challenged Google's policies on behalf of all trademark owners in the state. Legal experts said it was the first class-action suit against Google over the issue. Google's acceptance of such competitive uses of trademarks has irked many other companies, including the likes of American Airlines and Geico, who have filed suits against Google and settled them. Many brand owners say the practice abuses their brands, confuses customers and increases their cost of doing business. 'I know of several companies spending millions of dollars a year in payments to Google to make sure that their company is the very first sponsored link' on searches for their own names, said Terrence Ross, a partner at Gibson Dunn, who represented American Airlines in its suit against Google. 'It certainly smacks of a protection racket,'"

Comments

Trademark isn't really about sources anymore

[langelgjm]

Trademark law is all about protecting consumers from being deceived about the source of goods/services.

In theory, yes, but in practice (as you probably know, since you know what initial interest confusion is), that's not the reality. IIRC, consumers don't even have standing to sue in a case of trademark infringement. Maybe they can sue for false advertising, but it's the trademark owner who has to bring the lawsuit for infringement.

Besides, with the expansion of trademark due to the notion of "dilution", and the licensing of trademarks for purposes other than source-identification (sponsorship, etc. - the stadium doesn't come from M&T Bank), it's hard to argue that trademark is all about protecting consumers, or even mostly about it anymore.

In 1-800 Contacts v. WhenU, WhenU didn't run into trouble because their ads popped up in a separate window. That's not the case with Google (though they do clearly say "Sponsored Link"). WhenU was also not found to be "using" the trademark (despite including it in a database), because "use" of a trademark for the purpose of infringement has to be in commerce, and simply using the mark in a database didn't count as such.