Google May be Liable for Advertisers' Copy

A US court recently found that search engine company Google is partially liable in a closely-watched trade-mark infringement suit. The August 8, 2005 written opinion of the Justice Leonie Brinkema of the US District Court for the Eastern District of Virginia, expanding on an oral opinion from the Court last December, found that Google's practice of including trade-marks in the text of sponsored links could cause consumer confusion. Google sells advertisements (Sponsored Links) that appear alongside "organic" search results returned when a user queries Google's database of indexed web sites for general terms, such as "auto insurance". Geico, an insurance company, had accused Google of violating its trade-marks by using the words "Geico" and "Geico Direct" to trigger rival advertisements. Geico claimed the marketing practice, which brings in nearly all of Google's revenue, diluted Geico's trade-marks and caused consumer confusion. However, the Court found that Geico's expert survey evidence, meant to demonstrate that Google's Sponsored Links were confusing to consumers, was flawed. As a result, the Court refused Geico's request to enjoin the defendant from selling Geico trade-marks triggers in its advertising program or from continuing to display third-party advertisements alongside the results of searches that use Geico's trademark. Nevertheless, the Court did find that that Google's practice of allowing Geico's trade-marks in the text of third party advertisements that appeared as Sponsored Links caused consumer confusion in violation of US trade-mark law. Although Google has since ceased this practice, it may still be liable for past infringement, or for advertisements that slipped or continue to slip through Google's system for blocking the appearance of trade-marks in third party advertisements. The Court was careful to limit the potential impact of this decision on Internet business practices, noting that the plaintiff's business model is a unique one and that the findings are fact-specific and not yet fully resolved. Further, the Court noted that none of the advertisers themselves are party to the action and their potential liability is not an issue before the Court. A 30-day stay has been granted to give the parties time to consider the ruling and determine whether they can resolve the remaining legal issues. The full text of the decision can be found at: http://blog.ericgoldman.org/archives/geicogoogleaug2005.pdf For a news article, visit: http://news.com.com/2100-1024_3-5835898.html Summary by: Jason Young