Article by George Norman

On 06 Apr 2009

As if the fact that an open-internet advocacy group has called on the FCC (Federal Communications Commission) to look into Google pulling a tethering-enabling app from the android Market (details here) was not enough, there are mode bad news for the Mountain View search engine giant: the Second Circuit Court of Appeals has ruled that any trademark owner can sue Google if it uses the trademark as a keyword in the AdWords program. And this is on top of a previous report when an online privacy group called upon the FTC (Federal Trade Commission) to investigate Google’s cloud based services, such as Google Docs and Gmail (details here).

The whole thing goes something like this: if you are a trademark owner and Google sells that trademark as part of it AdWords program, then you could take Google to court. This is all possible because the Second Circuit Court of Appeals overruled a 2006 decision which stated that the act of selling trademarked words does not go against the trademark law.


The Electronic Frontier Foundation (EFF) explains: “The Second Circuit reversed the lower court ruling and held that recommending and “selling” a mark to an advertiser to trigger a sponsored link could violate trademark law. Indeed, the Court went further, observing that even product placements could be subject to trademark law if the mark holder could show that consumers were confused. The holding has obvious implications for Google, which could now face an avalanche of similar lawsuits with no easy way to shut them down (instead, they’ll have to go through the expense of discovery and arguing the always difficult question of consumer confusion). But the real losers will be consumers.”

Let us take a look at an example in order for us to understand this better. You fire up your browser and type in the following query into Google search: “product X”. In the sponsored links search results you get a link for “product Y”; the user might be tempted to believe that product Y is related to the brand name attached to product X. If the trademark holder can prove that this is the case, that the user was indeed confused by the search results, that trademark holder can sue Google.

EFF again: “Today's ruling does not say that buying or selling a trademark as a search keyword necessarily infringes the trademark. The trademark owner still must prove that consumers are confused. The Second Circuit seemed to think that was shield enough for the likes of Google. It's doubtless a happy day for trademark lawyers looking for new cases to bring. But it's a sad day for consumers looking for simple access to good information.”

Since we are on the topic of letting down users, the Google owned YouTube has once again blocked users from accessing video content: first they did this in the UK, now in Germany. This is a shame really, because taking a quick break to browse some videos on YouTube has been proved to boost productivity in the workplace (details here).



Tags: Google, AdWords, Trademark

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