Is Google Liable For Typosquatting Domains That Use AdSense?

from the seems-like-a-stretch dept

While I have tremendous respect for the ongoing work that Ben Edelman has done over the years exposing many of the dirty tricks used by spyware and adware vendors, I tend to disagree with his view on trademark law. In the past, Edelman sided with websites that sued early spyware vendors for putting up competing pop up ads, but that was missing the point. The real problem there was the fact that spyware was surreptitiously installed. If people wanted to see competitive ads, that should be their choice, and not a trademark issue. There's nothing wrong with competitors trying to get your attention if they know you're looking for a competitor's product. That's not a trademark law, so long as there's no attempt to confuse users into thinking that one product was made by someone else.

Edelman, however, disagrees. And, now, he's actually suing Google for allowing AdSense ads to be placed on "typosquatter" domains. This lawsuit seems like a longshot. As has been seen in numerous lawsuits over AdSense and trademarks, suing Google is trying to put liability on the wrong party. You could potentially sue the owner of the domain, but even that seems like a stretch. It's unlikely that anyone arriving at the typosquatted domain will be "confused" into believing they're at the correct site. They'll either quickly retype the URL properly, or they'll click on a link on the site that takes them to the proper site. There's no actual "confusion" here and it's difficult to see how there's any consumer harm. The fact that Google makes money off the practice shouldn't be seen as illegal at all.

Filed Under: ben edelman, lawsuits, trademark, typosquatting

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    Mike (profile), 27 Oct 2008 @ 10:06am

    Re: Google's role & liability -- the court's view, and the relevant statutory language

    In short: An ACPA claim can properly lie not only against a domain registrant, but also against a domain registrant's business partners, when such partners participate in the typosquatting project in certain ways (like those described above). This strikes me as entirely appropriate. After all, the ACPA statute prohibits not just "register[ing]" domain names, but also "traffic[ing and] us[ing]" domain names. And for good reason: Congress exactly intended to hold responsible not just domain registrants, but also those who coordinate, fund, and orchestrate typosquatting.

    Does this change your thinking?

    No, it doesn't change my thinking. I think the statute is wrong. It's trying to place the liability on a party that isn't actually responsible. Focus on those responsible, and you'll get no argument from me. Dragging in business partners because they're big and an easy target is a cop out.

    Somehow Google figured out that when a user requested "" (s.i.c.), the best (most prominent) ad to show was an ad promoting Bank of America. How did Google figure this out? Google's own statements indicate use of "semantic analysis" -- software to read a domain name, parse it, and figure out what a user was trying to do. You say Google doesn't "actually 'audit' any of the sites that run" Google ads. I'm not sure I agree with that claim. But in any event Google certainly has to know where ads are appearing, in order to select the ads that will make as much money as possible.

    Knowing what ad to display is TREMENDOUSLY different from knowing that a site is bogus.

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