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 Google & Co v. Trademark Owners: The latest AdWord-News from the USA

The Flowbee v. Google case has been transfered from Texas to California by invoking the venue selection clause in the AdWords contract. See Goldman, Eric, Google AdWords Contract Upheld Again, Causing a Venue Transfer in Flowbee v. Google, Technology & Marketing Law Blog. Flowbee International, Inc. v. Google, Inc., 4:10-cv-00668-LB (S.D. Tex. Feb. 8, 2010).


In the Jurin v. Google case, the search engine got a dismissal of several claims.
A violation of 15. U.S.C. 1125 (a) – False Disgnation of Origin occurs, when a producer misrepresents his own goods or services as someone else’s, or, conversely when he represents someone else’s goods and services as his own. The court dismissed the claim:
Here, Defendant has in no way directly represented that it is the producer of the Styrotrim product. To the extent Plaintiff may contend that Defendant has helped “facilitate” confusion of the product with others, such is a highly attenuated argument. Even if one accept as true the allegation that a “Sponsored link” might confuse a consumer, it is hardly likely that with several different sponsored links appearing on a page that a consumer might believe each one is the true “producer” or “origin” of the Styrotrim product. As such, Plaintiff fails to properly plead a false designation of origin claim."

Rather interesting, the court also found that Google’s keyord suggestion tool is covered by 230 CDA: Rather it is a “neutral tool,” that does nothing more than provide options that advertisers could adopt or reject at their discretion, thus entitling the operator to immunity." 

For more information see: Goldman, Eric, Google Dismisses Some Claims in Jurin v. Google and Gets Some Attorneys' Fees, Technology & Marketing Law Blog

Jurin v. Google, Inc., 2010 U.S. Dist. LEXIS 18208 (E.D. Cal. March 1, 2010).


Rescuecom has dropped its keyword-related lawsuit against Google, thus ending the oldest case on the issue. Although it has not won any new concessions from Google, Rescuecom declared victory. "We have obtained two of the three things we initially sought in our complaint against Google." Rescuecom CEO, David Milman said.


1. “Rescuecom's first victory occurred before the United States Court of Appeals for the Second Circuit. That landmark case soundly rejected Google's argument that its auction of Rescuecom's trademark to the highest bidder was not a "trademark use" of Rescuecom's trademark."


2. "Google has recently confirmed to Rescuecom that it has removed Rescuecom's trademark from its Keyword Suggestion Tool." (this probably already happened in 2005...)


3. "The last of the three issues, which remains to be resolved another day, is how trademarks may be used as keywords to trigger the sponsored links themselves in a way that does not confuse consumers." It has probably become hard to press the issue against Google, because Rescuecom is seeking declaratory judgement in another case against Best Buy, that it may use the trademark protected term “geek squad” as a keyword. See Mediapost for details!


Stratton Faxon v. Google, Inc., NNH-CV-09-5031219S (Conn. Superior Ct. dismissed March 8, 2010). On March 8 the court granted a motion brought by Google to dismiss the case. See Goldman, Stratton Faxon v. Google Dismissed, Technology & Marketing Law Blog


Amazon has won a Keyword Lawsuit against Video Professor. Amazon had used “Video Professor” as keyword to trigger its ads. In some occasions clicking on the ad led users to a landing page on which competing Professor Teaches products appeared above and before Video Professor products. Video Professor alleged trademark infringement. But Video Professor was an Amazon vendor and the Vendor Manual, an agreement between Video professor and Amazon, includes the following passage: „Vendor ... hereby grants to a non-exclusive, worldwide, perpetual, and royality-free licence to ... use all trademarks and trade names included in the Product Information”. The court found that the scope of the licence is plain and unambiguous and Amazon’s use of the mark as keyword was within the scope of the licence. So no trademark infringement!

Video Professor, Inc. v ., Inc., 1:09-cv-00636-REB-KLM (D. Colo. April 21, 2010). For more information on the case also see: Goldman, Eric, Amazon Wins Keyword Advertising Suit--Video Professor v. Amazon, Technology & Marketing Law Blog




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