Judge Refuses To Dismiss Yet Another Miguided AdWords Trademark Lawsuit

Legal Issues

from the this-again? dept

I had thought that, at least in the US, the claims that Google’s AdWords program somehow violates trademark law by letting competitors buy ads based on keywords, were a thing of the past. Previous decisions in the Geico and Rescuecom cases showed that, so long as the ad doesn’t confuse users into thinking it’s affiliated with the trademark holder, then it’s perfectly legal. However, one of the earliest such cases, started over 3 years ago by American Blind, is apparently still ongoing. The latest is that a judge has refused to dismiss the case. That doesn’t mean that American Blind won’t eventually lose, but it does prolong a rather ridiculous situation.

We may be sounding like a broken record on this, but trademark law isn’t really intellectual property law. That is, it’s not about “protecting” some kind of property. It’s really a consumer protection law, to keep consumers from getting confused into believing that Bob’s Cola is actually Coca Cola because they put a Coca Cola label on the bottle. That makes sense. You don’t want people to be misled into buying something when they thought it was something else. However, advertising Bob’s Cola where people might be looking for Coca Cola makes perfect sense. It’s why in the supermarket, when you walk down the cola aisle, you may see a coupon (which is really a paid advertisement) for Bob’s Cola sticking out right by the Coca Cola. Hopefully, this will eventually be common knowledge, but it still seems like many are confused by it — and things like Utah’s new state law banning ads on trademarked keywords aren’t helping the situation.

Of course, a more important (and still ignored!) point, is that Google is the wrong defendant here. If American Blind really believes that there were ads on the site that violated its trademark, it should sue the advertiser. Google is simply the platform where the ad was placed and had nothing to do with any potential trademark violation. Update: As expected, Eric Goldman has a detailed analysis.