Commentary

Unsealed Brief In Google Trademark Case Shows Little Cause For Confidentiality

When Rosetta Stone appealed the dismissal of its lawsuit against Google for allegedly infringing trademark on AdWords, the language learning company filed a good portion of the brief under seal, which included material that both companies wanted to keep confidential.

Advocacy group Public Citizen protested, arguing that this closely watched case -- which could determine whether Google can allow companies to use trademarks to trigger search ads -- shouldn't be litigated in secrecy.

The parties then agreed to unseal Rosetta Stone's brief, which happened yesterday. Google's brief, however, still contains some redactions, but Public Citizen (which represents MediaPost in an unrelated matter) has vowed to intervene in the case if the companies don't agree to unseal this brief as well.

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This much is clear: Now that a complete version of Rosetta Stone's brief is available, the case for confidentiality appears more questionable than ever.

Consider some of the formerly redacted passages:

  • "The Rosetta Stone marks have achieved high levels of recognition among the public."

  • "Google selects the sponsored links displayed on its search-results pages based on the amount the customer bids on the keyword and on what Google describes as the sponsored link's relevance to the user's search query."

  • "Before June 2004, Google did not permit its customers to buy or use third-party trademarks as keywords or in sponsored links if the trademark owner objected."

    Of course, not all of the redacted passages consisted of common knowledge. But the other material, while interesting, and potentially embarrassing to Google, should hardly have been deemed top-secret. One of the biggest revelations in the unsealed brief concerns the company's 2009 decision to start allowing trademarks in the ad copy itself.

    Google's pre-2009 research showed the potential for consumer confusion when trademarks were used in the ad copy, but also showed that such ads were more likely to garner clicks, according to the brief.

    Harvard's Ben Edelman, who often criticizes Google, takes these details to mean that Google's policies are "confusing to consumers."

    But the situation seems far from clear-cut given that the studies dealt with trademarks in ads in a variety of contexts, and Google only allows trademarks in ad copy in limited circumstances -- including when the term is used in a generic way, or by a reseller. In those instances, it's not at all clear that consumers are confused by the use of a trademark in an ad.

    Regardless of Google's pre-2009 studies, a trial judge cleared the company of infringing Rosetta Stone's trademark will AdWords. Of course, an appellate court will have the last word, given Rosetta Stone's appeal. But it's absurd to think that this issue -- which could affect every search marketer and trademark holder -- could be decided based on briefs filled with supposedly secret information.

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