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RSSThe decision doesn't mean that Google will ultimately lose the case. It also doesn't stop Google or other search engines from allowing companies to use trademarks to trigger ads. But it makes doing so riskier: If those ads are found to confuse consumers, search engines could be on the hook for trademark infringement.
Here, Google was sued by computer repair shop Rescuecom for allowing rivals to appear as sponsored listings when consumers typed "rescuecom" into the query box. A district court judge dismissed the case before trial on the theory that allowing a word to trigger an ad didn't violate trademark law because it wasn't a use in commerce.
Judge Pierre Leval, who wrote the appellate opinion, disagreed with that conclusion -- which isn't surprising because he indicated at oral argument last year that he believed the trial court was wrong.
Leval and his colleagues sent the matter back to the district court for a trial about whether the search ads potentially confused consumers. So far, Google has successfully defended itself at trial in another lawsuit on that issue. In that case, brought by Geico, a U.S. district court judge found that the pay-per-click ads didn't cause confusion.
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This, in my opinion, is not "tilting" the playing field. It's leveling it back out. I've seen many honest business people trying to earn a living be forced out of Adwords by underhanded online marketing techniques who so severely alter the use of a keyword niche for affiliate usage that they force legitimate businesses off the page and out of the market.
Quality score can only go so far in addressing this problem. Yahoo enforces trademark keyword restrictions. I don't see any reason why Google shouldn't do the same - right now Google is the last bastion for the mass affiliate marketer for this very reason.
The paid search market is going through the obligatory lawsuits, and honestly, I'm surprised that it's taken this long for these suits to come about. I'm pretty sure that they're going to get worse before they get better. Combine this one with the Amazon v. Video Professor suit, and it will be interesting to see how the search engines enforce any new rules that come from this.
One thing that just occurred to me...
1) What would be the impact be on foreign Google sites if Google looses the suit?
2) If they tighten the rules too much, it may open the opportunity for a foreign search engine. I think it's far-fetched at this point, but if you start tilting the playing field and making it harder for advertisers to market in the US search engines, Google's revenues *could* decrease, and that money might flow overseas instead to a new search engine. (This is pure speculation, though.)
This has me intrigued. Maybe I should have been a lawyer... but then I would probably have to hate *myself*... =)
http://www.rkrishardy.com/2009/04/adwords-confusion-lawsuit-googles-dismissal-overturned/