Cybersitter Sues For Trademark Infringement On AdWords

by Wendy Davis, Jun 22, 2012, 9:52 PM

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Cybersitter, a company that sells software to block adult content, has sued Google for alleged trademark infringement on AdWords. The lawsuit appears to be the first such case against Google since April, when a federal appeals court cleared the way for this type of lawsuit.

In a complaint filed this week, Cybersitter alleges that a rival content-blocking company, Net Nanny, paid to have its ads shown to Web users who search for "Cybersitter" on Google.

Cybersitter argues that Google's decision to allow the company's name to trigger search ads infringes trademark. Cybersitter also says its trademark was infringed by the ad copy for Net Nanny, which sometimes included Cybersitter's name. For instance, one Net Nanny ad included the statement "Protect your child with #1 rated Cybersitter software."

Cybersitter named Net Nanny as well as Google as defendants in the case, which was brought in U.S. District Court for the Central District of California. Cybersitter argues that Google and Net Nanny "intentionally and wrongfully used a bait and switch strategy to confuse consumers into purchasing a competing product."

A Google spokesperson said: "We believe the claims here are entirely without merit, and we look forward to demonstrating that in court." Google has faced similar lawsuits in the past; none have so far ended in a defeat for the search giant. Instead, most of the lawsuits were either withdrawn or settled, while two resulted in a Google victory.

But in April, the Fourth Circuit Court of Appeals said that one of those victories was premature. In that case, the appellate court reversed a pro-Google decision dismissing a lawsuit brought by language learning company Rosetta Stone. U.S. District Court Judge Gerald Bruce Lee in Alexandria, Va. awarded summary judgment to Google, ruling that no "reasonable trier of fact" could find that Google's AdWords policies confused Web users. But the appeals court ruled that Rosetta Stone was entitled to a trial about whether Google confuses consumers by allowing a company's trademarked name to trigger a competitor's pay-per-click ads.

News of Cybersitter's lawsuit was first reported this week by Santa Clara University law professor Eric Goldman. He points out that Cybersitter doesn't allege in its lawsuit that it complained to Google about the copy in Net Nanny's ads. "If Cybersitter didn't give Google a chance to fix the problem pre-litigation, I doubt a judge will be very supportive of Cybersitter," he writes.

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