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
    Mark Murphy, 27 Oct 2008 @ 7:54am

    An Ill-Fitting Suit

    Like Mr. Masnick, heretofore I've had the utmost respect for Prof. Edelman's work. This suit, and his defense of same, pushes him into the "I dunno..." category in my book.

    Prof. Edelman uses, in his comment above, an an example:

    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.

    Prof. Edelman buries in this innocuous sentence two key assumptions:

    • That it is possible, algorithmically, to determine when "very similar" constitute "confusingly similar" or "dilutive".
    • That it is possible, algorithmically, to determine when the comparison name (in this case, constitutes a protected mark under ACPA.

    Neither of those assumptions are remotely true. For example, I guarantee you I can find an attorney who will attest that is dilutive of and, by virtue of using to obtain a professorship and speaking honoraria and the like, Prof. Edelman is a typosquatter and should be prosecuted under ACPA. It's not completely out of the question I could find a jurisdiction with a judge who will agree with this claim. Yet, somehow, a computer is supposed to figure out, on its own, that this claim is ludicrous?

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