The Trademark Blog

The Advocate General of the European court of Jsutice has released his opinion in Google France v LVMH, regarding Google's ability to sell keywords reflecting trademarks, in the EC. The Advocate General's opinion strongly determines the actual decision of the ECJ. The AG's view is that the sale of keywords is not per se unlawful From the ECJ press release:

In his Opinion delivered today, Advocate General Poiares Maduro suggests that Google has not committed a trade mark infringement by allowing advertisers to select, in AdWords, keywords corresponding to trade marks. He highlights that the use of the trade marks is limited to the selection of keywords which is internal to AdWords and concerns only Google and the advertisers. When selecting keywords, there is thus no product or service sold to the general public. Such a use cannot therefore be considered as being a use made in relation to goods or services identical or similar to those covered by the trade marks. Similarly, advertisers themselves do not commit a trade mark infringement by selecting in Adwords keywords corresponding to trade marks.

By contrast, the Advocate General finds that Google, by displaying ads in response to keywords corresponding to trade marks, establishes a link between those keywords and the sites advertised which sell products identical or similar to those covered by the trade marks. The very same link is established between keywords which correspond to trade marks, and the sites displayed as natural results.

However, in the view of the Advocate General, such a link also does not constitute a trade mark infringement. In effect, the mere display of relevant sites in response to keywords is not enough to establish a risk of confusion on the part of consumers as to the origin of goods or services. Internet users are aware that not only the site of the trade mark owner will appear as a result of a search in Google's search engine and sometimes they may not even be looking for that site. These users will only make an assessment as to the origin of the goods or services advertised on the basis of the content of the ad and by visiting the advertised sites; no assessment will be based solely on the fact that the ads are displayed following the entry of keywords corresponding to trade marks.

IPKat analysis here.

Posted by Marty Schwimmer at 09:33 AM | Permalink | Comments ()

Soaring Helmet v Bill Me dba Leatherup.com and Google, WD WA June9 2009

Posted by Marty Schwimmer at 07:32 AM | Permalink | Comments ()

SearchEngineLand: "Why Hasn't Google Cleared, Fired or Suspended Accused AdWords Employee?":

Google takes plenty of well-publicized heat for things it hasn’t really done or concerns that get hyped. But in the case of one of its AdWords employees being accused of bypassing AdWords policies for his own benefit, I’m surprised the Big G isn’t being dragged over the coals. Over a month after the initial accusations, the person appears to still be fully employed at Google, without Google issuing any public comment about the case.

In early April, Jeremy “ShoeMoney” Schoemaker filed suit against Keyen Farrell — a Google AdWords account coordinator — alleging that Farrell was infringing on his trademark via Google AdWords.

Posted by Marty Schwimmer at 10:35 AM | Permalink | Comments ()

Prof Goldman analysis here:

Rescuecom Google Key Word Decision

Posted by Marty Schwimmer at 09:46 AM | Permalink | Comments ()

IPKat on European keyword cases.

Posted by Marty Schwimmer at 10:36 AM | Permalink | Comments ()

Prof Goldman tallies Utah's (and 1-800-Contacts) war against keyword advertising (disclosure - I have represented clients who have been adverse to 1-800-Contacts).

Posted by Marty Schwimmer at 11:32 AM | Permalink | Comments ()

Prof Goldman: Fifth Circuit Denies Yahoo's Jurisdictional Appeal in American Airlines Case:

Yahoo's principal argument was that the parties' lawsuit was governed by its Sponsored Search Agreement, which had a mandatory venue clause requiring litigation in Yahoo's home court. The district court judge did not respond well to that argument, calling it "completely nonsensical." The appeals court wasn't as harsh but still concludes that Yahoo didn't make the extraordinary showing required to obtain the relief Yahoo sought--even though American Airlines is seeking disgorgement of its payments under the Sponsored Search Agreement as one of the requested remedies.

Posted by Marty Schwimmer at 11:22 AM | Permalink | Comments ()

Who'd've thought it? RankedHard.com.

Posted by Marty Schwimmer at 02:17 PM | Permalink | Comments ()

Brand Spillovers by Prof Eric Goldman (to be published in the Harvard Journal of Law and Technology):

This Article considers the spillover effects of trademarks-in particular, "brand spillovers," which occur when consumer interest in a trademark increases the profits of third parties who do not own the trademark. Using techniques such as loss leaders and shelf space adjacency, retailers routinely create brand spillovers for their profit, and trademark law generally has not restricted these activities. Online intermediaries, such as search engines, also create and profit from brand spillovers by selling manufacturers' trademarks for advertising purposes ("keyword triggering"). However, in contrast to retailer practices, keyword triggering has sparked a heated and irresolute battle over its legitimacy under trademark law. By drawing lessons from retailers' experiences with brand spillovers and through an analysis of the ways intermediaries can add value to consumers, this Article offers a new way to resolve the keyword triggering debate. The Article proposes that all intermediaries - including both retailers and online intermediaries - should be permitted to use brand spillovers as part of their effort to reduce consumer search costs, even if the intermediaries profit from the brand spillovers along the way.

Posted by Marty at 10:40 AM | Permalink | Comments ()

Rainy day fun: put your client's trademarks into this aggregated username search engine, to see if any usernames on the various social network sites incorporate those marks. HT to the Nipper.

Posted by Marty at 08:49 PM | Permalink | Comments ()

NY Times: "Help for eBay Shoppers Who Can't Spell":

A handful of new Web sites with names like Typo Bay and Typo Buddy are out to help shoppers save money by searching eBay for misspelled brand names. Such items often have fewer bidders because they don’t appear in search results for people who spell the items correctly, and therefore can be had at a cheaper price.

Posted by Marty at 10:04 AM | Permalink | Comments ()

MediaPost.com: Searchers Led Away From Brand Sites:

More than one in 10 U.S. Internet searches for leading brands end up clicking away from the brand owner's Web site, according to a recent report from research firm Hitwise.

Posted by Marty at 12:16 PM | Permalink | Comments ()

Legal Pad: "Tiny Law Firm Sues Google Over Search Results":

The problems began with Google after Oct. 15, according to the firm’s trademark infringement suit filed in federal court last week. That’s when Powlen and Berger began punching “Global Law, 94105” into Google – let’s be honest who among you doesn’t spend most of the work day Googling your name? They did this on “several different dates” and found that the first search result read “Global Law, LLP” but linked to another law firm. Legal Pad tried it last week and found that indeed it linked to SF’s Schinner Law Group, which happens to be Powlen’s old firm.

Posted by Marty at 11:15 AM | Permalink | Comments ()

Out-law.com: Argentine Search Engines Told To Block Famous Names:

Search engines in Argentina have been banned from linking to stories naming up to 100 famous people including football legend Diego Maradona in a move critics have said is tantamount to censorship.

Google and Yahoo! have filtered search results relating to the names on their Argentine sites but not their international ones, the companies told internet filtering campaigning organisation the OpenNet Initiative (ONI).

Posted by Marty at 09:38 AM | Permalink | Comments ()

Prof Goldman: "Search Engine 'Cache' Function Covered by Implied License - Parker v Yahoo":

This lawsuit squarely revisits the ground covered in the Field v. Google case, which Google won for 5 different reasons--including that anyone who posts content to the web knowing that search engines display cached copies impliedly licenses the search engines to do so. Here, the search engines apparently obtained the copyrighted works from Parker's site (instead of from some third party infringing site), and Parker admits he knew of the cache function. As a result, Yahoo and Microsoft can claim an implied license for their cached copies.

Posted by Marty at 12:30 PM | Permalink | Comments ()

Money.cnn.com: "Google Slaps FindLaw In Effort to Crack Down On 'Link Juice':

"FindLaw, a subsidiary of the business information giant Thomson Reuters Corp. (TRI), built Newell his Web site last spring and primed it to appear in major search engines for a fee of about $1,600 per month. It was such a success that one year later Newell was willing to sign up for the SEM Advantage product, costing another $2,000 a month. Billed as a "high-octane" way to double or even triple traffic on his site, Newell and others like him understood FindLaw's SEM Advantage product to be a package of well-placed links designed to lift a Web site's standing in a Google search. But now they're wondering if they're still getting their money's worth."

Posted by Marty at 04:31 PM | Permalink | Comments ()

I downloaded the new Google Chrome Browser. The URL window functions as a search window if you type in a term that isn't recognized as a URL. If I type DELTA or UNITED or LLOYDS per se into the URL windows of Safari and Firefox, they convert that to Delta.com, United.com and Lloyds.com respectively, which statistically may be a good guess but may not represent what 100% of all users intend when using such terms. If I type those terms into IE, I get search results for those terms on MS Live Search (or Verizon's search when I do this at home). Google Chrome, as you would expect, returns Google results for non-urls typed into the URL window. Search results add a click for users but doesn't land users on an unintended page.

Both Live Search and Google, of course, may return keyword ads for competitors along with the organic search results.

I direct your attention to this post from March discussing URL-based navigation vs search from the point of view of a trademark owner, and speculation on how browsers may evolve in that regard. I view Google Chrome as one more potential step away from the primacy of the domain name in web navigation.

Posted by Marty at 12:37 PM | Permalink | Comments ()

Nike sues Eastern Mountain Sports for keying ads for its wicking apparel to Nike's trademark DRI-FIT.

Ad Age commentary here.Nike

Posted by Marty at 03:35 PM | Permalink | Comments ()

Hearts on Fire alleges that Blue Nile purchased 'hearts on file' as keyword, and used that term in the text of its ads, but does not offer HEARTS ON FIRE diamonds.

Posted by Marty at 10:56 AM | Permalink | Comments ()

Here's an idea for a law journal note: compare the approach of the German court in the AIDOL case (BGH, 8 Feb 2007 (sic), Case I ZR 77/07 - AIDOL), holding that the use of a trademark in white-on-white writing (presumably to game the search engines) is a form of trademark use, with that of, say, the Eastern District of NY in this meta-tag case (emphasizing that meta-tags are not perceived by consumers). Via INTA Bulletin.

Posted by Marty at 11:39 AM | Permalink | Comments ()

NLJ: "Confusion Reigns In Courts Over 'Metatags':

"In view of the inconsistent decisions regarding metatags, especially in light [of] the conventional wisdom among search-engine specialists that metatags do not affect page rank, it may be the case that lawyers have not effectively educated judges as to metatags' function, importance and how they are perceived, if at all, by the user," said Martin Schwimmer, a copyright and trademark specialist at Moses & Singer in New York.

Posted by Marty at 09:21 AM | Permalink | Comments ()

Prof Goldman: "Keyword Metatags and Keyword-Triggered Ads Don't Create Initial Interest Confusion - Designer Skin v. S&L Vitamins":

An Arizona district court has ruled that the surreptitious use of trademarks doesn't create a likelihood of initial interest confusion, granting summary judgment on the trademark claims to the defendant.

This case is another enforcement action brought by a manufacturer trying to keep its goods from leaking out of its restricted channel and being sold on the Internet.

Posted by Marty at 10:38 AM | Permalink | Comments ()

TechDirt: European Court To Review Whether Google Can Sell Ads On Trademarked Terms:

While US courts have (mostly) finally realized that simply selling search terms based on someone else's trademarked name should not make Google liable, French courts haven't been so enlightened. The huge fashion retailer Louis Vuitton won a lawsuit against Google, because some advertisers had purchased search ads on the term "Louis Vuitton" to advertise "Louis Vuitton Fakes" and "Louis Vuitton Replicas." It's hard to see the common sense reasoning to support LV in this case. In fact, the ruling seems problematic on two separate accounts -- both on the question of whether this was a trademark violation and whether it's Google who should be liable even if it is a trademark violation.

Also: NY Times: "Google and Louis Vuitoon Face Off in Trademark Spat"

Posted by Marty at 11:18 AM | Permalink | Comments ()

Someone filed application77/171330 for SEO covering "Marketing services in the field of computers in the nature of providing marketing services for the benefit of others by compiling advertising campaigns, promotional services, and consulting for customers." Several third parties opposed, alleging, among other things, that SEO is a generic term standing for 'search engine optimization.' Coverage here.

Posted by Marty at 01:27 PM | Permalink | Comments ()

Film at 11.
Initiates
Multi-lingual Search.com: "Google Trademark Bloodbath In The UK":

Google has changed its trademark policy for the UK and Ireland bringing it into line with its policy for the US and Canada. What this means in practice is that for trademark complaints relating to its Adwords programme, from now on Google will take NO further action relating to the trigger keywords. It will, however, continue to support requests relating to the use of trademarks in the creative - in other words in the sponsored links. See a typical notification below. The new policy comes into force from the 5th May - but the deadline for new trigger keyword applications was effectively the 4th April.

Posted by Marty at 05:13 PM | Permalink | Comments ()

The Laboratorium: Rescuecom Oral Argument Report.

Posted by Marty at 02:19 PM | Permalink | Comments ()

Cabel.name: Japan" "URL's Are Totally Out", wherein the author notes a trend in Japanese advertising to encourage viewers to type in a certain term into a search box instead of navigating via a URL.

It makes sense, right? All the good domain names are gone. Getting people to a specific page in a big site is difficult (who's going to write down anything after the first slash?). And, most tellingly, I see increasingly more users already inadvertently put complete domain names like "gmail" and "netflix" into the Search box of their browsers out of habit — and it doesn't even register that Google pops up and they have to click to get to their destination.

The author concludes that in the future, the url window and embedded search window will trade sizes to look like this:

I think that this if this is in fact the trend in Japan then it is very important for trademark owners. When I ponder things like the PPC industry, and domain tasting, and front-running, and a seemingly endless parade of sunrise periods, and an endless stream of emails from the Intellectual Property Consitutency of ICANNs seeking written comments about the latest outrage, I am left with the conclusion:

The domain name system is damage and the trademark community should route around it.

I think that educating the audience to use search engine terms rather than URLs is a step in that direction.

Thanks to Cabel for spotting this.

Posted by Marty at 11:43 AM | Permalink | Comments ()

NY Times: A New Tool From Google Alarms Site:

Retailers and publishers have fought hard to work their way up in the ranking of Google’s search results and refine the search features of their own Web sites to help users once they arrive. Now, Google is taking a greater role in helping users search within particular sites. And some of the same retailers and publishers are not happy about it.

Alan Rimm-Kaufman, an Internet consultant, said Google might be asked at times to turn off a new feature. This month, the company introduced a search-within-search feature that lets users stay on Google to find pages on popular sites like those of The Washington Post, Wikipedia, The New York Times, Wal-Mart and others. The search box appears when someone enters the name of certain Web addresses or company names — say, “Best Buy” — rather than entering a request like “cellphones.”

Posted by Marty at 12:22 PM | Permalink | Comments ()

In a longer post of Prof Goldman's, he supplies some links discussing, in his view, rising anger of SEO firms with the Rip-Off Report, and allegations that Google somehow favors it.

Posted by Marty at 01:44 PM | Permalink | Comments ()

Prof. Goldman: Kentucky Court Votes Keyword Ads = TM Use In Commerce:

Either way, this case reinforces the pattern that Second Circuit-controlled courts aren't finding trademark use in commerce from keyword triggering and all other courts are. In that respect, this ruling is reminiscent of the American Airlines v. Google ruling, where the court declined to dismiss the complaint without any substantive explanation.

Posted by Marty at 10:08 AM | Permalink | Comments ()

DM News: "The Legal Tangle of Competitive Keyword Advertising":

Posted by Marty at 01:27 PM | Permalink | Comments ()

Prof Goldman: "1-800 Contact Sues LensWorld For Keyword Advertising"

In any case, the LensWorld lawsuit is a garden-variety advertiser-vs.-advertiser keyword advertising lawsuit. Based on the limited data we have, I'm guessing the Utah federal court will deem keyword advertising a trademark use in commerce, but after that, who knows? The only twist here is that 1-800 Contacts claims that LensWorld aped their FAQs, prompting a tossed-in copyright infringement claim as part of the package. Also I can't help but note that there appear to be many other possible defendants who are buying 1800contacts as a keyword (see the screenshot in para. 22/page 6)...is a 1-800 Contacts litigation frenzy imminent, or is LensWorld uniquely positioned for 1-800 Contacts' enmity?

Posted by Marty at 12:51 PM | Permalink | Comments ()

SearchEngineWatch: "Trademark Law - What Search Marketers Should Know, Part 1"

Trademark Law - What Search Marketers Should Know, Part 2.

Posted by Marty at 10:45 AM | Permalink | Comments ()

Wired.com: "MoveOn.org Reverses: Allows Critical Ads on Google":

"The left-leaning political advocacy group, MoveOn.org, is backing down in a flap over the use of its name in online advertisements, permitting an influential Republican senator to criticize the organization in a reelection ad on Google's search engine.

"We don't want to support a policy that denies people freedom of expression," says Jennifer Lindenauer, MoveOn.org's communications director."

Posted by Marty at 11:45 AM | Permalink | Comments ()

Let me ask you guys something. As an exercise, I purchased some keywords that have to do with trademark law for ads that promote The Trademark Blog.

I use MyBlogLog, which identifies URLs that readers clicked on to get to my site. One such URL is:

http://pagead2.googlesyndication.com/pagead/ads?client=ca-pub-4171260820145196&dt=1192178573625&lmt=1192178573&prev_fmts
=728x90_as&format=300x250_as&output=html&correlator=1192178572531&channel=5765682001&
url=http://www.wwe.com/divasearch/competitions/res

If you click on that URL you get a page that looks like this, displaying Google ads for watches, wrestling shows and ringtones. If you look at the string, you will see a bit of a url:

http://www.wwe.com/divasearch/competitions/res

which doesn't resolve but

http://www.wwe.com/divasearch/competitions/rescue/

does resolve to the WWE site. You'll notice that the page has no content conceivably related to trademark law (although the word 'trademark' does appear on the bottom of the page, as part of WWE's trademark legend).

However you'll note that there are no keyword ads on the page.

Various 'Google syndication' URLs containing bits of WWE pathnames have been showing up for several weeks now, as well as pathnames that I would characterize as resolving to splogs. None of these sites are trademark related and none seem to be running my ads.

And I'm skeptical that if my ads did appear on the WWE site, that anyone viewing the WWE Divasearch would click through to view The Trademark Blog.

Any theories as to why these strings are showing up in my referrer logs (and yes, I am being charged and no, Google has not provided an explanation to date)?

Posted by Marty at 02:51 PM | Permalink | Comments ()

Prof Goldman: "Yet Another NY Court Says Keyword Ads & Metatags Aren't TM Use in Commerce - S&L Vitamins v. Australian Gold."

Posted by Marty at 10:38 AM | Permalink | Comments ()

Prof Goldman: American Blinds-Google Settles:

"After almost four years of litigation, the American Blinds lawsuit ended today with a stunning victory for Google. According to a copy of the settlement agreement sent to me, Google isn't paying any money to settle the dispute, and the settlement merely says that American Blinds won't sue Google so long as Google follows its current trademark policy. So, after spending enormous amounts on lawyers over the past 4 years, American Blinds gained absolutely nothing from the litigation. Instead, American Blinds ends the litigation worse than when it started (putting aside the legal fees); it had a judge declare two of its purported trademarks unenforceable, and it wrote a check to Google as a sanction for mismanaging the discovery process."

Posted by Marty at 09:38 PM | Permalink | Comments ()

Prof Goldman: "American Airlines Sues Google Over Keyword Ads" (copy of complaint included):

"Well, this is interesting. It's not unusual for a trademark owner to sue Google for keyword-triggered ads--been there, done that. However, the fact that American Airlines pulled the trigger catches my attention. Many trademark owners who have sued Google had relatively obscure brands. Rescuecom? JTH Tax? Check-n-Go? Even American Blinds is hardly a household name. In contrast, American Airlines is an extremely well-known trademark owner with a big portfolio of trademarks. Further, American Airlines apparently decided it was worth going to war over this issue--and is prepared to pay the big bucks to litigate this case accordingly. If this lawsuit runs its course, I expect this to be a hard-fought and expensive lawsuit."

Posted by Marty at 09:30 AM | Permalink | Comments ()

Prog Goldman: Interesting thread on search engine regulation.

Posted by Marty at 12:39 PM | Permalink | Comments ()

IHT: "Australian consumer watchdog files action against Google Inc."

"Australia's consumer watchdog has launched legal action against Google Inc. for allegedly misleading users by blurring the distinction between paid and unpaid search results in favor of one of its advertisers."

Posted by Marty at 10:22 AM | Permalink | Comments ()

Prof Goldman: "Google Subpoenaed for Keyword Purchase Data -- Rhino Sports v. Sport Court"

Posted by Marty at 09:46 AM | Permalink | Comments ()

Prof Goldman: "American Blinds Sanctioned"

Posted by Marty at 10:56 AM | Permalink | Comments ()

Following on the heels of Site Pro-1 v. Better Metal, the Eastern District of NY has again held that neither use purchase of a keyword nor use of a competitor's trademark in a meta-tag, rises to use of a trademark. Congratulations to my Moses and Singer colleague David Rabinowitz, who successsfully represented defendant.

Copy of decision in FragranceNet .com v. FrangranceX.com here.

Prof Goldman analysis here on why the Second Circuit has become a pro-defendant forum in search engine cases.

Posted by Marty at 03:39 PM | Permalink | Comments ()

Prof Goldman: "Google Sued in Domainer Lawsuit -- Vulcan Golf v. Google:

"Domainer litigation is heating up, and this lawsuit may be the most ambitious anti-domainer lawsuit to date. First, it is a putative class action lawsuit. Second, in addition to naming four leading domainer firms, the plaintiffs provocatively go after Google for providing ads to domainer sites. I believe this is the first lawsuit against Google for its domainer relationships.

The complaint itself is a 121 page, 638 paragraph (with one paragraph enumerating 47 defined terms), 4.3MB behemoth alleging trademark infringement and dilution, ACPA violations, RICO and other claims."

Posted by Marty at 02:03 PM | Permalink | Comments ()

NY Times: "The Human Touch That May Loosen Google's Grip" (describing alternative search engines).

Posted by Marty at 02:24 PM | Permalink | Comments ()

MAHALO is a 'human-powered' search engine. It raises interesting questions Its founder, Jason Calacanis, is discussing Mahalo's development on his blog. Mahalo is adding 'hand-written' results one at a time. If you're monitoring a certain brand, you can be notified when it's added.

Posted by Marty at 11:48 AM | Permalink | Comments ()

The source of my statement below that search engines don't rely on meta tags:

Search Engine Watch: "Death Of A Meta Tag."

If any one has more current info, send it on in.

Posted by Marty at 12:09 PM | Permalink | Comments ()

This is a pretty interesting analysis. Defendant placed plaintiff's trademark in metatags, and also purchased search ads keyed to that trademark. Neither the ads not defendant's webpage used the ads.

Held: If the trademark was on the webpage that was visible to potential customers, that might have been use in commerce. If the defendant actively puts the trademark in the meta-tags where the search engine can see it, with the intent that more people will see the website, that's not use on the advertisement, so its not use in commerce. (as an aside, it is generally thought at this time that search engines ignore meta-tags).

i guess buying search ads is, to a certain extent, like moving next to the anchor store in the mall. You've actively positioned yourself next to the trademark owner, and can divert traffic through adjacency (mayt not divert by confusion.)

SitePro v. BetterMetal, 1:06-cv-06508-ILG-RER (EDNY May 9 2007).

Posted by Marty at 10:03 AM | Permalink | Comments ()

Via Prof Goldman: 'Utah Legislations Realizing They Screwed Up By Banning Keyword Advertising.' (in which Utah companies are advising their local legislators that they like to buy keywords consisting of other trademarks).

Posted by Marty at 11:08 AM | Permalink | Comments ()

EFF Requests that Utah AG delaly implementation of the 'Electronic Registration' law.

If you're aware of the circumstances under which a State AG can delay implementing a law, sua sponte, then please advise and I'll post it.

Posted by Marty at 10:14 AM | Permalink | Comments ()

AP: "Google Calls New Utah Law Unconstitutional"

Salt Lake Tribune comes out against passing unconsitutional laws that would benefit no one but the companies pushing them.

"Utah Takes Flak For Its Attempts To Police Web" in which Prof Goldman rags on Utah so hard that the state might get defensive about it. Also, interesting to see 'WTF' used in legal debate.

Posted by Marty at 10:15 AM | Permalink | Comments ()

Utah State Senator defends the Utah law here (making a puzzling reference to the law as a private-sector solution).

Matthew Prince, a law professor (and 'secure registry' entrepreneur) defends the law here.

Eric Goldman, law professor, responds.

Posted by Marty at 04:01 PM | Permalink | Comments ()

Information Week: 'Utah ban on Trademark Keywords Rankles Groups"

Posted by Marty at 10:50 AM | Permalink | Comments ()

ZDNet: "Yahoo China Sued For Alleged Copyright Breach":

"Music industry giants including Warner Music Group are suing Yahoo China for alleged copyright infringement by providing links to unlicensed music, trade organization IFPI said on Wednesday.

Beijing's No. 2 Intermediate Court has accepted the case, which was filed in early January by 11 companies and seeks damages of $710,686 (5.5 million yuan), said Leong May-seey, the International Federation of the Phonographic Industry's (IFPI) Hong Kong-based regional director for Asia."

Posted by Marty at 02:04 PM | Permalink | Comments ()

Prof Goldman: Rescuecom Files Reply Brief in Rescuecom v. Google.

Posted by Marty at 10:26 PM | Permalink | Comments ()

Discussion of settlement in keyword purchase case by Prof Goldman.

Posted by Marty at 11:06 AM | Permalink | Comments ()

Foley & Lardner: "Do Pay-For-Placement Search Engines Engage in Trademark Use?"

Posted by Marty at 10:20 PM | Permalink | Comments ()

Prof Goldman: "Rescuecom v. Google Appellant Brief" (2d Circuit appeal).

Posted by Marty at 09:27 PM | Permalink | Comments ()

Prof Goldman: "Keyword Ads and Metatags Don't Confuse Consumers -- J.G. Wentworth v. Settlement Funding" (Eastern District of Pennsylvania, finding no likelihood of confusion). From the post:

". . . this case stands for two clear legal propositions:

* if keyword-triggered ad copy doesn't display the plaintiff's trademarks, plaintiff loses
* if search results don't display the plaintiff's trademarks even though the trademarks were included in the keyword metatags, plaintiff loses"

Posted by Marty at 09:25 AM | Permalink | Comments ()

Wall St Journal: "Google Search: 'Copyright'"

Commentary thereon here.

Posted by Marty at 11:57 AM | Permalink | Comments ()

Digg.com is a news-site that uses 'social bookmarking.' Readers submit third-party stories and the most popular stories are displayed on the home page. According to this article, one of the most popular posts last week was a laudatory story about a company named InventionLand, an inventor-submission firm (every patent lawyer in the audience just groaned). If you're familiar with that genre, you are not surprised when I tell you that it is now claimed that the high placement of the article on Digg was due to a form of 'spamming,' in this case a concerted attempt by someone to deliberately promote the company.

People try to 'game' the algorithms of web services all the time. Word-stuffing, link farms, splogs and Digg-spamming are attempts to manipulate the results of various web processes.

Without referring to the specific news item mentioned above, might such attempts constitute torts? Two potential theories include (1) some species of false advertising, and (2) tortious interference with prospective advantage.

Might competitors have an unfair competition action against the 'gamer'? When web services erroneously over-report 'popularity' or 'relevancy' of a webpage, is that a material misrepresentation of a quality of the gamer's product?

Does the 'gamed' web service have a cause of action against the gamer (apart from breach of contract, if a contract existed)? Assume that a website such as Digg or Google base their reputation on the quality of their 'popularity' or 'relevancy' opinions. If the gamer, with knowledge of a web service's algorithms, takes acts to manipulate those opinions, which manipulation may result in damage to the web service's reputation, might this constitute some form of tortious interference with prospective advantage?

The above chart is a representation of the 'Digg Effect,' the onslaught of traffic caused by being 'dugg,' discussed here.

Posted by Marty at 11:15 AM | Permalink | Comments ()

CIO: "French Publishers Join Google Book Search Suit."

Posted by Marty at 03:38 PM | Permalink | Comments ()

Prof Goldman reviews the latest case, Buying for the Home, LLC v. Humble Abode, LLC, 03-CV-2783 (JAP) (DNJ Oct 20, 2006), and, noting that recent cases have been alternating in their holdings, confidently predicts that because this case held that keyword buying is use in commerce, the next such case will hold that it is not a use in commerce.

Last month's contradictory result here.

Posted by Marty at 04:14 PM | Permalink | Comments ()

Google successfully brought a motion to dismiss infringement and dilution action brought against it in the Northern District of New York. The Court rejected the GEICO holding that the sale of a keyword by a search engine was trademark use.

RescueCom v. Google, 5:04CV-1055 (NDNY Sept 28, 2006)

Prof Goldman commentary here.

Posted by Marty at 01:29 PM | Permalink | Comments ()

Prof Goldman: "Do Quotation Marks Matter? -- Picture It Sold v. iSold It" (keyword case).

Posted by Marty at 09:40 PM | Permalink | Comments ()

International Herald Tribune: "European trademarks vs. Google" (Paris appeals court expected to rule Wednesday in LVMH's suit against Google for keyword sales).

Posted by Marty at 10:36 PM | Permalink | Comments ()

Denver Post: LoveCity sues Yahoo over Yahoo's alleged purchase of Google (sic) keyword advertising to promote a Yahoo site.

JP Enterprises v. Yahoo, 06-cv-01046-REB-PAC (D. Colo Amended complaint June 6 2006).

Posted by Marty at 05:17 PM | Permalink | Comments ()

The title makes sense when you read this post by Prof. Goldman regarding a withdrawn lawsuit against Google regarding 'mishandled' page rankings.

Posted by Marty at 08:09 PM | Permalink | Comments ()

Video distributed in YouTube illustrating adword abuse (worth the 9 minutes).

Posted by Marty at 10:28 AM | Permalink | Comments ()

Text of Complaint in Crafts by Veronica v. Yahoo, filed in the District Court of New Jersey on Monday.

Washington Post coverage here.

Posted by Marty at 10:11 AM | Permalink | Comments ()

Search Engine Watch: 'Google Sued In Israel For Search Ad Trademark Dispute.'

Posted by Marty at 10:53 PM | Permalink | Comments ()

Mark Cuban discusses the definition (and extent) of click fraud. He gives several examples:

"[Click Fraud is] a click by a system or person on a page designed to circumvent the advertiser's intent. In otherwords, advertisers are spending their money in order to get results. They have directed money to PPC advertising to get click throughs from their intended audience, to their intended destination.

If a kid on myspace says "click on the ads" to help me pay for XYZ, and they do, that's click fraud.

If an ad shows up on a splog and the advertisers doesn't want their ads on splogs. That's click fraud.

If an ad shows up on a parked domain and the advertiser doesnt want their ads on parked domains. That's click fraud.

If an ad shows up on a page thats part of an arbitrage scheme (buy clicks from a cheap PPC company, sell them using a more expensive PPC provider), that's click fraud."

Posted by Marty at 03:59 PM | Permalink | Comments ()

IPKat: "Aussie Adwords And True-Blue Pans' (Telstra purchases keyword reflecting name of competitor).

Aussie barrister Warwick Rothnie comments here.

Law Font comments here.

Posted by Marty at 06:39 PM | Permalink | Comments ()

Merck and MSD Technology v. Mediplan Health Consulting, 05 CV 3650 (DC) (SDNY March 30, 2006).

Prof. Tushnet commentary here.
Prof. Goldman commentary here.

Posted by Marty at 12:22 AM | Permalink | Comments ()

Technology & Marketing Law Blog: 'Competitor's Keyword Ad Purchase May Be Trademark Infringement' (discussing District of Minnesota case Edina Realty v. TheMSLonline.com).

Posted by Marty at 12:09 PM | Permalink | Comments ()

Technology & Marketing Law Blog: Google Sued Over Rankings - KinderStart.com v. Google.

Posted by Marty at 08:58 PM | Permalink | Comments ()

WSJ article on how Google's AdSense programs encourages sham websites, some of which rely on copyright infringement as a business model.

Posted by Marty at 02:24 PM | Permalink | Comments ()

Barrett, 'Internet Trademark Suits and the Demise of 'Trademark Use,' 39 U.C. Davis L. Rev. 371 (2006). Abstract:

"The Internet has provided countless new ways for ingenious businesses and individuals to refer to a plaintiff's mark in a manner that impacts the plaintiff's business. These new methods may not directly associate the mark with goods or services that the defendant is offering for sale and may be completely hidden from consumers' view. In evaluating the numerous trademark infringement and dilution suits that these unauthorized references have generated, courts have often failed to focus on the appropriate role of the "trademark use" requirement, which has traditionally limited the scope of the trademark infringement (and more recently, trademark dilution) cause of action. Some courts appear to have completely ignored the trademark use limitation, while others have acknowledged the limitation but construed it in a manner that undercuts or distorts it. This has given rise to a number of splits in the Circuit Courts of Appeals. This Article undertakes to bring some focus and coherence to the trademark use issue in the Internet context. It provides an in-depth examination of the history and purpose of the limitation and proposes a modern, general definition of "trademark use" in light of that history and purpose. It then demonstrates how this definition should apply in several important contexts on the Internet."

HT Prof Goldman, who provides other links to law review articles on the same topic.

Posted by Marty at 01:37 PM | Permalink | Comments ()

What percentage of search engine users click on organic search results as opposed to the paid listings? This question was asked on a Search Engine Watch forum. unfortunately the most recent public statistics seems to be a 2004 iProspect report that states:

Google - 72.3% organic, 27.7% Paid ads
All engines - 60.5% organic, 39.5% paid ads

If you have a link for more recent stats, send it on.

Posted by Marty at 11:49 AM | Permalink | Comments ()

Search Engine Watch: 'Yahoo To Ban Bidding On Competitor Trademarks To Stop Comparison Advertising.'

Posted by Marty at 02:20 PM | Permalink | Comments ()

CNG Financial v. Google, 06CV 040 (S.D. Ohio). Financial company sues over sale of CASH N' GO as keyword, alleging direct and indirect infringement. hat tip BNA Internet Law News.

Posted by Marty at 11:54 AM | Permalink | Comments ()

Matt Cutts: Google confirms penalizing SEO company.

Posted by Marty at 07:40 PM | Permalink | Comments ()

Google has de-listed BMW.DE for violating Google's webmaster's guidelines, specifically the BMW site was presenting contenting to the search engine that differed from that actually viewed by users. Via Ricoh is reportedly going to receive a simialr sanction. Matt Cutts' 'Gadgets, Google and SEO' blog,

Posted by Marty at 11:04 AM | Permalink | Comments ()

The World Association of Newspapers has announced that it is leading a task force of newspapers, book publishers and magazines in order to explore methods of challenging the exploitation of content by search engines without fair compensation to copyright owners.

Posted by Marty at 11:28 AM | Permalink | Comments ()

Because there will be a lot of traffic for GOOGLE CUBE and GOOGLE PACK?

Posted by Marty at 12:42 PM | Permalink | Comments ()

Wired article: "How Click Fraud Could Swallow the Internet" Discussion of click fraud, impression fraud, splogs and zombie networks, and whether cost-per-action advertising is the answer.

Posted by Marty at 08:36 AM | Permalink | Comments ()

Whether an ad appearing alongside organic search results for a search consisting of a trademark, creates a likelihood of confusion with that trademark, may depend in part on the user's ability to distinguish what on the search results page is an organic result and what is a paid result.

Publicly available research in the topic is sparse and of questionable methodology. However, for what it's worth, such research suggested that users were not easily distinguishing between paid and organic search. However, with the growing public awareness of Google and paid search in general, it may be the case that this research is out-dated.

Be that as it may, it is likely a step backward that it appears that today Google increased the size of the Adwords font so that it is the same size of the organic results.

Google screenshot from Bizresearch.

Posted by Marty at 01:52 PM | Permalink | Comments ()

Papers presented at today's symposium at Yale on search engines available here.

UPDATE: Photos from the conference, including an action photo of me speaking.

Posted by Marty at 03:58 PM | Permalink | Comments ()

Compare results among three leading search engines. I tried it out with 'Trademark Lawyer' and the discrepancy was a little surprising. Via Searchblog.

Posted by Marty at 01:54 PM | Permalink | Comments ()

Rendered no less sordid for its oft-retelling. Prof Eric Goldman on the Office Depot v. Staple VIKING keyword case.

Posted by Marty at 12:19 PM | Permalink | Comments ()

Posted by Marty at 03:09 PM | Permalink | Comments ()

Posted by Marty at 11:40 AM | Permalink | Comments ()