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Google Faces Trade Mark Trial Over Advertising Program
The United States Court of Appeals for the Second Circuit has vacated a lower court’s ruling dismissing an action by Rescuecom Corp. against Google for trade-mark infringement, false designation of origin, and dilution under the Lanham Act. The lower court’s ruling concerned Google’s use of its AdWords program and Keyword Suggestion Tool.
Google’s AdWords program allows advertisers to purchase terms or keywords, which could include the trade-marks of competitors. When entered as a search term, the terms or keywords trigger the appearance of the advertiser’s ad and a link to the advertiser’s website on the search page. The Keyword Suggestion Tool is a program that recommends terms or keywords for advertisers to purchase, which could include trade-marked terms or keywords.
Rescuecom, a computer service franchising company, alleged in the lower court that Google’s display of sponsored links of competing brands in response to a search for Rescuecom’s brand created a likelihood of consumer confusion. The Court of Appeals held that this question should be settled in a trial. The Court of Appeals did not rule on the merits of the case, but held that the lower court misapplied a previous ruling in the case of 1-800 Contacts v. WhenU. The Court of Appeals also held that the inclusion of a trade-mark in an internal computer directory could constitute an actionable trade-mark use and that Google’s recommendation and sale of Rescuecom’s mark to its advertising customers are not internal uses.
For additional information, visit:
http://w2.eff.org/legal/cases/rescuecom_v_google/06-4881-cv.pdf