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Second Circuit Expands Trademark Rights, Restricts Consumer

eff.org — In a what could be a potentially serious blow to Google's AdWords business, and to consumers’ ability to find information about competing offerings on the Internet, the Second Circuit Court of Appeals ruled today that a trademark owner can sue Google for trademark infringement for selling its mark as a keyword as part of the AdWords program.

Who dugg this? Made popular Apr 5, 2009

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23 Comments

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  • gbudavid, on 04/04/2009, -2/+28It'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.
  • Jericho6, on 04/04/2009, -1/+14From the article: "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."

    I'd hope this last part will prevent anyone from actually winning such suits. At thi spoint the decision merely allows the lawsuits to take place, and not be dismissed for failure to state a claim. But I have a hard time seeing how they can be won. We'll see how it plays out.
  • LordBalderdash, on 04/05/2009, -2/+7they'll be suing over meta tag keywords next, just you watch.

    i get the feeling that the people who make rulings like this really don't understand the way the internet functions.
  • jezsik, on 04/05/2009, -0/+4This is NOT why trademarks were created.
  • kipling100, on 04/05/2009, -1/+4Too bad trademark law is for the protection of consumers
  • inactive, on 04/05/2009, -2/+4here we go again, everyone trying to blame someone else for their problems instead of taking personal responsibility for their destiny. hey, instead of spending all that time and money in courts how about you use it to improve your business model?
  • wextrix, on 04/05/2009, -0/+2Did anyone actually read the holding? All the 2nd circuit did was overturn the 12b6 motion to dismiss. Rescuecom still have a ways to go before anything is "decided" as the case has barely started.
  • StankInTheBank, on 04/06/2009, -0/+1Penis.
  • jezsik, on 04/07/2009, -0/+1This is not about competition advertising another's products as their own; that is indeed illegal. What this is doing is preventing businesses from offering you a choice. Imagine going to the Yellow Pages to find a specific plumber. Would it be against the law for other plumbers to have ads next to the ad of the plumber you're looking for?
  • inactive, on 05/03/2009, -0/+1Thanks for the great Trademark Article - honestly, a trademark is the one of the MOST IMPORTANT business ASSETS you'll ever own. It's your name, your logo, or any other symbol that distinguishes your company or products in the marketplace.File a Trademark in 3 easy steps now - http://bit.ly/trademark
  • r3zonance, on 04/05/2009, -0/+1"Technically, if Google is profiting from selling a trademark in a way that the holder does not agree with, the rightsholder has a right to file suit."

    True, but who wouldn't want free advertising?
    Who wouldn't want to make it easier to find their products by having them appear on relevant/competitors web sites?
  • blindhammer, on 04/05/2009, -0/+1Trademark law is not for the "protection of consumers" per se. Trademark law simply shows the source of a good. How consumers use that information is up to them.

    Honestly, I'm tired of digg's anti-attorney stance. You know what. Why don't you come up with a system of government that does not involve attorneys. That's right. Come up with a system of government that does not allow people to have their interests represented or defended against the government and each other.

    Oh, that's right, we already have systems like that: fascism and dictatorship.
  • r3zonance, on 04/05/2009, -0/+1How the hell does this even work?

    The AdWords program works on the basis that the people who are willing to pay the most for their link placement (among other criteria related to payment limits etc.) to get their link shown on a page. The person/company is then billed by Google whenever their advert is displayed. The person/advertiser has to at least pick the type of advert they would like displayed and has the option of customising the advertisements appearance and content. There is no way to even get an advertisement displayed without having provided the necessary correct (and verified by Google) account details of the business in question. Basically, AdWords is 100% consent based.

    I know this as I recently helped a business setup AdWords.
  • Jnkns, on 06/01/2009, -0/+1I agree, trademark wasn't created for these kind of issues. I guess if someone has to sue for a keyword, trademark concept should be reevaluated.
    Craig Miller
    http://www.ilikesem.com/blog/sem-ad-campaigns-copy ...
  • r3zonance, on 04/05/2009, -0/+1"Too bad trademark law is for the protection of consumers"

    I think you mean trademark law SHOULD be for the protection of consumers. How is trying to prevent a consumer from finding your company's web site etc. going to protect the consumer?
  • MWeather, on 04/05/2009, -0/+1Really? I thought it was so your competition couldn't advertise their product as if it was yours. This seems to fit the bill.
  • inactive, on 04/05/2009, -3/+3I've got a feeling Google with it's billions and billions of cash is quietly laughing at this.
  • alvaris, on 04/04/2009, -3/+3Thank you for sharing this. I hope this case will be resolved.
  • frieddonuts, on 04/05/2009, -1/+1It's a question over what distinguishes a moral use of trademark vs. what is a legal use of trademark. Technically, if Google is profiting from selling a trademark in a way that the holder does not agree with, the rightsholder has a right to file suit. However, the possibilities for misuse are huge. Google's going to basically be extorted out of selling certain keywords.
    Who suffers? Us consumers, who rely on the internet as a free, uninhibited source of information.
  • LightSpeed4, on 04/05/2009, -3/+2haha owned

    google sucks
  • Valyn, on 04/05/2009, -3/+1Can someone explain in english without all the legalese what this means...
  • inactive, on 04/05/2009, -8/+3"The trademark owner still must prove that consumers are confused."

    Sensationalist title. Buried as inaccurate.
  • blindhammer, on 04/05/2009, -7/+2Oh, of course. Blame lawyers.

    Because increased trademark protection couldn't possible benefit the people and companies that actually OWN the trademark.

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