February 12, 2007
IP Profs consider Amicus Brief in Google TM Case
Google's caching, adwords, adsense, and other activities have made it the subject of a number of trademark suits. One is Rescuecom v. Google, a district court decision available here.
A group of IP profs is proposing an amicus brief, which you can find here. Eric Goldman from Santa Clara is one of the authors.
The issue of whether the kind of use that inarguably occurs when a user searches Google with the trademark owner is a "use" in terms of the Lanham Act is something my class at Mercer happens to be studying right now. The courts split, with the majority finding for Google (no doubt reflected in its stock price!). Yet, there is something amiss, I suggest, where a third party is able to divert customers from the trademark owner's site to related, competing sites, by using the trademark. We'll see.
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Diversion assumes that we know where people are going in the first place, an assumption that warrants careful consideration. Eric.
Posted by: Eric Goldman | Feb 13, 2007 10:48:09 AM
Well, if consumer types in "Eddie Bauer" chances are, I'd say, that they're looking for something Eddie Bauer makes.
Posted by: David Hricik | Feb 13, 2007 4:52:08 PM
Your assertion is provably false, and I believe it's been proven false. Look at the research on the search funnel and the use of branded vs. non-branded keywords. Eric.
Posted by: Eric Goldman | Feb 21, 2007 11:50:55 AM
My goodness, sounds like a Rule 11 violation for even filing the suit! I learned long ago that proof in the judicial world takes place in the courtroom, and I don't recall that evidence being of record, but instead it being a pure legal issue.
My take on Google after reading all these cases is that the company is making enormous amounts of money by trading off the hard-earned good will and work of lots of intellectual property owners. So far it's managed to get away with it.
Posted by: David Hricik | Feb 22, 2007 3:03:11 AM