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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  1. identicon
    Anonymous Coward, 12 Aug 2009 @ 11:44pm

    I think (Professor) Edeleman has picked the wrong issue.
    Assuming he is truly interested in this topic academically, and not commercially.
    The issue here is how can a user reach a website representing Trademark Owner (TO) with "zero" chance of reaching a website not representing TO.
    Consider the case of 1-800-HOLIDAY where a challenge to 1-800-H0LIDAY was unsuccessful.
    How could this dispute easily be avoided?
    One way is if you remember the phone number for Holiday Inn, instead of remembering a vanity number. That is, 1-800-465-4329. You might store this in your address book, set up a speed dial entry for it, consult directory assistance to obtain it or even consult a copy of a printed phone directory, looking up "Holiday Inn".
    Ultimately you must dial that number to reach Holiday Inn.
    Are computers different?
    Let's see.
    If Edelman is serious about operating in the computer law field then I trust he is familiar with UNIX like systems.
    I will walk through an example. I am not a UNIX guru. Any user who can type could handle this. In each case, the response times for these queries are a matter of microseconds. With local caching, to the senses it would seem "instantaneous". All this can be scripted into a one-liner. I'm being verbose for expository reasons.

    I am given a name.
    "Holiday Inn"
    I need a number.
    As with looking in a telephone directory, I have to decide how to approach this. For example, should I look up www.holidayinn.com or just holidayinn.com? Let's try those two.

    /bin/whois www.holidayinn.com
    No match for "WWW.HOLIDAYINN.COM"

    /bin/whois holidayinn.com
    Registrant:
    Domain Administrator
    Six Continents Hotels, Inc.
    3 Ravinia Drive Suite 100
    Atlanta GA 30346
    US

    Which would you pick? I think number two looks like the better choice.

    Now let's check the number.

    /bin/host holidayinn.com
    96.17.109.50
    96.17.109.67

    I now have two numbers now. Really no different than the concept of phone numbers for our purposes. I could type these in my browser, like pressing keys on the telephone. But first, the issue: Are they legitimately owned by Holiday Inn? Will these sites represent Holiday Inn or an alleged trademark diluter?

    /bin/whois 96.17.109.50
    /bin/whois 96.17.109.67

    Registrant:
    Domain Administrator
    Six Continents Hotels, Inc.
    3 Ravinia Drive Suite 100
    Atlanta GA 30346
    US

    Type either of these numbers into your browser and you will reach Holiday Inn. When you do that you do not use DNS. As such, you avoid all the scams and security flaws you enjoy researching and writing about.

    In short: 1. As an end user, use a local DNS cache with names and numbers you have verified (the pre-DNS the /etc/hosts concept) and 2. Use whois servers.

    Most user only visit a small fraction of the sites on the internet. But just for discussion consdider:

    How much storage space would a simple local DNS cache (only names + numbers) listing every Internet site available (i.e. billions) consume? I can fit the whole thing on my average, inexpensive laptop. It's called Moore's Law. 30+ years of innovation on CPU power since /etc/hosts was abandoned. And gigabytes cost less than .50 cents.

    Question: How do you think Google can cache every site on the web?
    Answer: More cheaply than you might imagine.

    Things are often much more simple than people are led to believe. Using UNIX and understanding Internet hostory will teach you this.

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