Latest AdWords Lawsuit Adds Insult to Injury

gavel Google has been hit with another AdWords-related lawsuit, this time by a Connecticut law firm.

The personal injury firm Stratton Faxon filed papers Wednesday in New Haven Superior Court alleging that its name was being used to trigger ads for the rival law firm Silver, Golub and Teitell. Stratton Faxon alleges that the use of its firm's name to trigger ads causes confusion and endangers its reputation.

The firm has asked for an injunction and for a prejudgment lien against Google for $50,000.

Attorney Michael Stratton, a partner in Stratton Faxon, said he discovered the ads after learning of the recent class-action lawsuit filed against Google by Firepond.

News about that case prompted him to search for his law firm's name. He learned that links to Stratton Faxon appeared high in the organic results, but that the firm Silver, Golub and Teitell appeared as the top sponsored listing.

Richard Silver of Silver, Golub and Teitell said he only recently learned of the details of his firm's AdWords campaign. "A communications firm was recently hired to assist our firm with Internet search response. I was unaware that search words would include other firms' names," he said in a statement. "If anyone at Stratton Faxon had called me, I would have immediately stopped the practice, as I did as soon as I learned of it."

Stratton Faxon alleges that Google interfered with the firm's business relations with clients, engaged in an unfair business practice under Connecticut law, and was unjustly enriched. But the law firm didn't make the more typical claim -- that Google infringed on the firm's trademark by allowing a rival to use it to trigger ads.

Stratton Faxon partner Michael Stratton says that he expects to flesh out his allegations soon. "We have a long way to go in terms of amending our complaint," he said.

Stratton added that he wanted to get into court as soon as possible to prevent the further use of his firm's name to trigger ads. "We're interested in stopping what was going on," he said. "We've chilled anybody who might want to do this."

The lawyer also said he is considering representing other potential plaintiffs in a class-action lawsuit against Google.

Eric Goldman, director of the High Tech Law Institute at Santa Clara University, said it's not surprising that the publicity surrounding the Firepond lawsuit prompted other lawyers to also bring cases. "I thought we were going to shake open a bunch of new litigants who would say, 'Yes, I can go sue Google. Let's go tangle with the tiger.' I think there are going to be more, frankly."

Google has faced several trademark infringement lawsuits stemming from its AdWords program, but has never definitively lost in court. The company settled at least one case -- a lawsuit by American Airlines -- but also prevailed on a key point in the only case to go to trial. In that case, brought by insurance company Geico, U.S. District Court Judge Leonie Brinkema in Virginia ruled that Geico hadn't proven that people were confused when its name triggered ads for rivals.

On Thursday, Google defended its practice of allowing trademarks to serve as ad triggers. "It's completely normal for a supermarket to stock different brands of cereal on the same shelf or for a magazine to run Ford ads opposite of an article about Toyota, so it doesn't make sense to limit competition online by restricting the number of choices available to users," the company said in a statement.

When these types of cases get to court, they generally turn on whether the use of a trademark is confusing. Companies that bring the lawsuits often argue that consumers who type in queries expect to see ads for the companies they're searching for. But Google, and others who side with the company, say that people are simply looking for information, and that searchers might find information about a competitor relevant to their queries.

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2 comments about "Latest AdWords Lawsuit Adds Insult to Injury".
  1. Chris Nielsen from Domain Incubation , May 29, 2009 at 1:37 p.m.

    I guess this law firm didn't look at the history for these kinds of cases. Well, it provides some free publicity for them anyway...

    Let's see, my ads for my competitor are displayed when someone searches on a system that I don't pay to be included in to start with. So now I will sue because the page that my information appears on also carries an ad for my competitor.

    Checks of Yahoo, MSN, Gigablast, and even Dogpile.com show that competitor's ads are not showing for "Stratton Faxon", but I did note that on Excite.com there is a ad for "Stratton Mountain Hotels".

    My personal feeling is that if you cannot stand next to your competitor in the marketplace without quaking in your boots, you have a bigger problem than being seen together.

  2. Lee Smith from Persuasive Brands , May 29, 2009 at 1:41 p.m.

    Allowing a company to keyword target a competitor's Trademarks to generate traffic or sales is like running a print ad saying a supermarket has Coca-Cola for sale. But when you arrive in the store, only Pepsi-Cola is available and they never had Coke. Clearly, this is an abuse of Coca-Cola's property (Trademark) to generate sales for and benefit Pepsi.

    The idea behind a Trademark is to prevent others from unfairly benefiting from your design or words--which is your legal property as granted by the Government through a carefully controlled and expensive process.

    However, current search engine keyword targeting practices allow precisely this capability. Keyword targeting is different from and unrelated to "Fair Use" where a product and any associated Trademarks of another company are described for comparison purposes.

    I can't see how Google can win this over the long run.