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
    Ben Edelman, 27 Oct 2008 @ 6:29am

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

    Thanks for the thoughtful message.

    Let's put aside the early spyware/adware litigation. That's a topic for another day.

    But on the question of whether Google is liable for the domain registrations of its typosquatting partners: It's instructive to review what the judge had to say. Remember, the case at issue was filed some 16+ months ago, and Google promptly filed a motion to dismiss, which was denied in relevant part. In the course of the denial of Google's motion to dismiss, the court explained:

    "Google contends that the ACPA cannot apply to it because it does not own or operate any of the allegedly infringing domain names. As noted above and by the parties, the ACPA imposes liability on one who 'registers, traffics in, or uses' certain types of domain names. ... The FAC [first amended complaint] alleges that Google pays registrants for its use of the purportedly deceptive domain names, provides domain performance reporting, participates in the tasting of domain names, uses semantics technology to analyze the meaning of domain names and select revenue maximizing advertisements and controls and maintains that advertising. Given these allegations, Google's motion to dismiss the ACPA count is denied."

    See (page 12).

    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?

    Separately, as to the #6 "anonymous coward" reply: 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. Of course, once Google notices that "bankofdamerica" is very similar to "bankofamerica," it's not much to ask that Google then realize that "bankofdamerica" is not an appropriate (or lawful) place on which to show ads.

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