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."
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
Amazon.com 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!
