• by Wendy Davis  @wendyndavis, December 6, 2010

First Amendment advocates and digital rights groups have weighed in on Google's side in a lawsuit by Rosetta Stone challenging the search giant's practice of allowing companies to use trademarks to trigger AdWords ads.

"Both Google and typical advertisers make fair use of Rosetta Stone's marks. Therefore, Google is not liable for trademark infringement," Public Knowledge and the Electronic Frontier Foundation argue in a friend-of-the-court brief filed Monday with the Fourth Circuit Court of Appeals.

Earlier this year, U.S. District court Judge Gerald Bruce Lee in Alexandria, Va. dismissed Rosetta Stone's trademark infringement lawsuit against Google, ruling that the search company's use of Rosetta Stone's name didn't confuse consumers.

Rosetta Stone recently asked the appellate court to reverse that ruling. The language learning company argues that it should be able to stop others from "free-riding" on its brand name, and that Google's practices confuse consumers. Rosetta Stone drew support in its appeal from several outside businesses, including Ford Motor Co. and Viacom.

The public interest groups who back Google argue that Rosetta Stone "seeks to change the scope of trademark law, and to grant itself the right to cripple advertising platforms and silence competitors."

Public Knowledge and the EFF argue that Rosetta Stone can't itself decide which uses of its trademark are "authorized." Rather, they argue, trademark law allows Google to use Rosetta Stone's name in AdWords because that type of use doesn't leave consumers confused.

Advocacy group Public Citizen filed a separate friend-of-the-court brief in support of Google.

"Trademark law protects consumers' ability to distinguish the goods of companies whose quality they have learned to trust, but should not be used to prevent consumers from criticizing or learning about criticisms and competing products," writes Public Citizen (which is representing MediaPost in an unrelated case).

"The fundamental flaw in Rosetta's submission is its apparent assumption that any member of the public who uses a search engine to conduct a search using the term 'Rosetta Stone' must necessarily be searching for Rosetta's official site, and only for that site, and hence is likely to experience confusion about whether all of the ensuing search results are linked to Rosetta's own site," Public Citizen adds. "The underlying assumption is wrong. To the contrary, it is common knowledge that an Internet user who employs a search engine and uses a search term that is in common use is likely to receive a listing of hundreds or even thousands of websites relating to their search terms."