by Mike Masnick
Fri, Aug 17th 2007 9:16am
You would think that with a number of judges already stating that keyword advertising based on a trademarked term is not trademark infringement that companies would stop filing such lawsuits. Apparently, you'd be wrong. And, oddly, the latest company to file such a lawsuit isn't a small no-name company (as is usually the case), but American Airlines who is suing Google for showing ads when people search on American Airlines. There are many problems with this lawsuit. First and foremost, suing Google is going after the wrong party. Google isn't the one doing the advertising, they're simply providing the billboard on which advertisers can write what they want. If there is infringement, then it should be the liability of the advertisers, not Google. Second, it's most likely not trademark infringement. Trademarks, unlike copyrights and patents, aren't designed to give the company full control, but just to prevent customer confusion. As long as the ads aren't misleading people into thinking that clicking on them will take them to American Airlines' own site, then it's hard to see how it's trademark infringement. It's perfectly legal (and good business) to advertise in a place when someone is looking for the competition. That's why you see discount coupons in supermarkets right next to competing products. Also, American Airlines is apparently complaining that some of the advertisers, while legally selling American Airlines tickets, also sell competitors' tickets. There's absolutely nothing illegal about that. If a company legitimately sells AA tickets, and someone does a search on American Airlines, why shouldn't they be able to point out that they sell AA tickets -- even if they also sell someone else's tickets? So far, most of these lawsuits end up going quite poorly for the complaining company, so this seems like it's likely going to be a waste of time and money for American Airlines, at a time when it would seem like they have a lot more pressing problems to be solving.
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