Trademark and Search Terms

by on April 8, 2008 · 9 comments

Over at Ars, I’ve got a write-up of Rescuecom, an important trademark case that was heard by the Second Circuit last week. I shamelessly ripped off James Grimmelmann’s excellent first-hand write-up of the exchange:

Trademark law is designed to protect consumers by preventing companies from selling their products under false pretenses. The core issue of the Rescuecom case is whether choosing a competitor’s trademark as an advertising keyword is likely to confuse consumers. Rescuecom has argued that Google profits from consumer confusion by obscuring the distinction between organic search results and paid advertising. Google, in contrast, compares its advertisements to a grocery store that stocks a generic product on a shelf alongside its brand-name competitor—a use that courts have consistently upheld as legal.

Last week, the case was heard by a three-judge panel of the Second Circuit. Law professor James Grimmelmann was there, and he gives a thorough summary of the exchange. The argument focused heavily on dueling analogies. Google’s lawyers invoked the grocery-store-shelf analogy and suggested that the situation was akin to handing out flyers in front of a competing restaurant.

Rescuecom’s lawyer countered that there was no concept of “next to” on the Internet. He argued that a consumer entering “Rescuecom” into Google’s search box was expecting to be taken to Rescuecom-owned sites, not to those of Rescuecom’s competitors or critics. He preferred to analogize Google’s actions to a scenario in which a listener calls directory assistance and is read a paid advertisement for a competitor. A judge also brought up a scenario in which a customer asks a druggist for Advil and is given Aleve instead.

My favorite analogy, though, comes from this comment in the Ars forums:

IIRC there was a case like this regarding Pepsi and Coke, where one of them was going around threatening restaurants who provided the competitor’s product when the customer asked for their product. Except that the recommended alternative was for the restaurant to instead tell the patron, “we haven’t got Coke, how about Pepsi instead?” Which seems to be much closer to what Google is doing. When you type in rescuecom and hit “I’m feeling lucky” then you get rescuecom.com, not rescuecomcompetitor.com or any other advertisers. When you hit search, you get a long list of results like you’re supposed to. Some of them are competitors and critics as well they should be.

I don’t know what case this might be referring to, but it’s an excellent example for Google’s argument. Not only is this exactly the “ask for Advil, get Aleve” scenario, but there’s no question that both Pepsi and the restaurant are profiting from it. And I’m reasonably certain that this is not regarded as trademark infringement. So if Google does the automated equivalent—search for Rescuecom, get an ad for Geek Squad—I don’t see why that would be different.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    I am leaning to accepting google’s analogies first, because they seem to make the most sense, and second, because the alternative requires some very heavy handed anti-freedom of speech perspective, that would be akin to not letting critics of a brand use the trademark in their discussion of the company/product.

    What would you name the movie “Supersize* Me” under such a regime?

    I suppose the website badvista.org shouldn’t appear when you type in Vista in google**?

    * I am assuming that McDonald’s has a trademark on Supersize(?)

    ** Currently badvista.org is only 8th in my google search results. Why doesn’t google make it number one?

  • http://enigmafoundry.wordpress.com eee_eff

    I am leaning to accepting google’s analogies first, because they seem to make the most sense, and second, because the alternative requires some very heavy handed anti-freedom of speech perspective, that would be akin to not letting critics of a brand use the trademark in their discussion of the company/product.

    What would you name the movie “Supersize* Me” under such a regime?

    I suppose the website badvista.org shouldn’t appear when you type in Vista in google**?

    * I am assuming that McDonald’s has a trademark on Supersize(?)

    ** Currently badvista.org is only 8th in my google search results. Why doesn’t google make it number one?

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