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, 27 Oct 2008 @ 7:09am

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

    "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."

    From a programmer's standpoint, let me tell you how that would probably work.

    1. Parse the text in the domain name, remove the www and the .com (or .net, etc), and determine the possible combinations of words. In this example, it would find bank, of, and America or bank, of, dame, and rica, or bank, of, and damerica.

    2. Parse the remaining text in the web page and make note of each word and how many times is appears. Since the page is inaccessible at this time, I cannot directly show how that would work, but let's assume that this is a typosquatter and not a site for the Bank of Dame Rica the whois lookup says it is for. If it were for a typosquatter targeting Bank of America, it probably has checking, debit, savings, "Bank of America", ect on it several time in various places a machine would see it but not humans, ie. metadata, ect.

    3. Google now looks at the list of words and how they are ordered ("semantic analysis" being recognizing that "Of all the banks in America, I like this the best." is different than "I like Bank of America best of all the banks in America." Computers have a very difficult time understanding word order in text of varying content and quality as the entire internet.) Since some personal site contain AdSence ads, it also checks for misspellings and uses the corrected spelling if no results can be found for the spelling in the page. If you google "bank america", the two most common words on this hypothetical page once articles, etc are discarded, you will find the number one sponsored link, ie the person that purchased those words, is Bank of America, which is why they are on the page.

    The problem Google has here is, the whois lookup says this site is registered to the Bank of Dame Rica. How could Google write a program to determine if a site is legit or not? Assuming such a program is found, how can you be sure it does not have even a single false positive or negative? Also, how can you be sure not one person can create a site that can bypass that filter? Computers cannot currently make that kind of distinction.

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