Why Google Shouldn't Be Liable For Suggesting Trademarked Terms In AdWords
from the it's-not-actual-use-in-commerce dept
Canadian lawyer David Canton (who I recently had the pleasure of meeting) has written up an excellent analysis why the recent ruling about Google’s potential liability for suggesting trademarked keywords doesn’t make much sense. His key point is a good one:
Perhaps Google did suggest a competitor’s mark — but trade-mark infringement only occurs when there is “use” in conjunction with similar products or services. How is Google supposed to know whether my use will infringe, or be perfectly lawful? A ruling that Google can never suggest keywords that happen to be trade-marked does not make sense to me.
For example, the word “Canton” has been trade-marked for various things by various companies in the U.S. and Canada, including speakers, liqueur, and soup. So if I wanted “David Canton” as a keyword, why would it be a problem for Google to suggest “Canton” as a possible keyword? Surely it’s my responsibility to use that keyword for my own purposes to promote my legal services — and not use it to sell my own line of speakers, liqueur or soup.
Google should have a role to play if I do that — but the role should be to forward complaints or put the complainant in touch with me — not to be liable itself for my infringement.
Indeed. Yet another reason for why the Second Circuit’s ruling is so troubling.