We've covered tons of lawsuits where companies were sued over claimed trademark infringement for buying ads based on trademarked keywords. While there are still some such lawsuits under way, for the most part, the courts have made it clear that just buying ads on a trademarked keyword is not a trademark violation. However, in the ever changing world of so-called "intellectual property" laws, things change all the time. We've been noting the dangerous rise of a hodgepodge of questionable state laws that create "publicity rights"
for individuals, and now we've got a case where someone was sued for buying keyword advertising based on someone's name
, with the plaintiff claiming that this was a privacy rights violation. The good news: the court didn't buy it and dismissed the lawsuit. The bad news, the court seemed confused and the reasoning isn't great. Eric Goldman explains:
The legal novelty of the ruling makes it an important early precedent, but the opinion is not especially persuasive. To me, the judge seemed overwhelmed by both the challenging legal doctrines and technology at issue in this case. In response, the judge issued one of the most citation-free opinions of its length that I have ever seen. This is not a scholarly opinion, and that makes less likely to influence other courts. It also means that an appellate court will likely give this opinion relatively low deference.
The fact that the court dismissed the lawsuit is, on its face, good news for both search engines and advertisers. However, I thought the judge's arguments were questionable and, at least at one crucial juncture, internally inconsistent. The ruling turned on a specific word in the Wisconsin publicity rights statute, and courts applying other statutes can easily distinguish this opinion if they want to rule for the plaintiffs. Therefore, this ruling could morph from a defense win into a plaintiff's friend depending on how future courts rely on and interpret it.
I'm sure we'll start to see more such lawsuits pretty soon, and hopefully some better, clearer rulings in response.