Google: Allowing Competitors To Buy Trademarked Keywords Is 'Pro-Consumer'
- by Wendy Davis @wendyndavis, July 13, 2009
In what's become a routine occurrence since a recent unfavorable court ruling, Google has been sued again for trademark infringement on AdWords.
This latest lawsuit -- at least the eighth since May -- was filed Friday by Rosetta Stone, which sells software that helps people learn foreign languages. The company complains that Google infringes Rosetta Stone's intellectual property by allowing competitors to use its trademarks to trigger pay-per-click search ads.
"Google's search engine is helping third parties to mislead consumers and misappropriate the Rosetta Stone marks," the company alleges in its lawsuit, brought in federal district court in Alexandria, Va.
Rosetta Stone, like other entities now suing Google, alleges that competitors are attempting to free ride on Rosetta Stone's trademarked name.
Google takes the position that its policies are pro-consumer because the company is giving people information that could be relevant to their query. The company and its defenders say that allowing trademarks to serve as triggers is comparable to, say, a drugstore deciding to place generic pain relievers next to Advil. A Google spokesman declined to comment specifically on Rosetta Stone's lawsuit because Google hasn't yet been served with the complaint.
Google has allowed trademarks to trigger ads for five years, but only drew a handful of lawsuits about this practice until an April decision by an appellate court went against the company. In that case, a lawsuit by computer repair shop Rescuecom, the 2nd Circuit Court of Appeals ruled that a trademark is used in commerce when it triggers an ad.
But that holding only makes it harder for Google to get cases dismissed at a preliminary stage. Whether Google or marketers ultimately win these lawsuits will depend on whether consumers are confused by the ads.
In fact, Google mostly prevailed in the only case about this issue that it took to trial. In that lawsuit, brought by insurance company Geico, federal district court judge Leonie Brinkema in Alexandria ruled that consumers weren't confused when rival insurance sellers used the Geico name to trigger search ads. Google and Geico later settled another portion of the case dealing with whether ad copy that included the Geico name infringed the company's trademark.
Last year, Rosetta Stone also filed a trademark infringement lawsuit against competitor Rocket Languages as well as Libros Media and two individuals for allegedly using the Rosetta Stone trademark to trigger ads. At least two of the defendants reached a settlement agreement with Rosetta Stone, according to a company statement. Court documents also show that the lawsuit was withdrawn in March.
Seems to me that "Brand Squatting" on search terms would violate Google's own usability standards. If a user searches for "Rosetta Stone", the user is obviously looking for Rosetta Stone software or archeology content. Serving ads for a competing language software package seems to violate the user's intention and damage usability by cluttering the page with information that he must sift through to find the relevant information.
Moreover, the "brand" itself, or more directly, the public's awareness of that brand, is an asset. It's wrong to enable a competitor that has no investment in creating the brand's awareness to steal the benefit of that investment. If it were a physical asset, Google would be Aiding and Abetting grand larceny.
I agree somewhat with Larry, but understand Google's point of view as well. As a consumer, if I'm searching for, say, an iPhone, I am happy to be presented with alternative options (like a Blackberry). That is what happens instore (remember stores?) and manufacturers have always competed within the store for prime shelf space. To think that consumers are so brand-attached that they will not consider alternatives, and that manufacturers have some irrevocable right to monopolise shelf space, goes against the spirit of competition that is the backbone of our marketplace.