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 Thursday, April 10, 2008
Here's the understatement of the week: "This wasn't the best-argued case of the day." New York Law School professor James Grimmelmann was referring to the resurrection of computer repair company Rescuecomm's lawsuit against Google, which was dismissed in 2006, but is now up for review by a federal appeals court. Editor's Note: Weird analogies aside, deciding whether competitor trademark keyword bidding constitutes use in commerce isn't easy. It kind of is on the surface, but the devil is in the details regarding potential for brand confusion. What do you think? Is targeting your competitor's trademark a violation? Let us know in the comments section. One can imagine the judges sliding spectacles to the ends of their noses, stretching out papers to arm's length and squinting, before trying to decide if they buy the argument that there is "no next to" on the Internet, and whether a search engine results page is more akin to a store shelf, directory assistance, a pharmacy, or a vending machine. This is one of a number of important cases across the country as the legal system tries to hammer out what is and isn't acceptable in the digital 21st Century. Some offline analogies might not fly in the online world, however. Those that don't fly in this case are offered first by Rescucomm's attorney, and then by judges who seem to have relative difficulty grasping the concepts behind search marketing. Give them a break; it's been a long time since they took their LSATs. Rescuecomm's case revolves around the not-so-simple question of whether bidding on trademark keywords is considered a use in commerce, thus violating trademark law. Rescuecomm's (previous) argument echoed other complaints from Geico and American Airlines that competing businesses should not be allowed to target their trademarks in sponsored search ads. Yahoo and MSN, fearing litigation, discontinued the practice. Rescuecomm's other argument though, is that when people search for a company name, they only want content from that company, not paid content from competitors or any other organization that might be targeting that keyword (like non-profits, critics, or news agencies). Google argued that it was improper to demand that all roads lead to Rescuecomm. In an "oral argument report," Grimmelmann says the judges joined Rescuecomm in theorizing and posing hypothetical situations, one of which involves futuristic machines that, if invented, would make as much sense as Universal Music Group's latest argument that throwing away promotional CDs constitute "unauthorized distribution." I'm putting that one on the board, too, as a contender for Not The Best-Argued Case of the Day.
The trump card in deciding whether or not the case can go to trial is whether there is potential for confusion between companies or products. This led the three-judge panel to discuss whether a sponsored ad appearing next to organic results was different from placing Pepsi next to Coke on the store shelf; or different from phoning directory assistance, asking for a company number and being given a competitor's number instead; or different from if you asked the pharmacist for Advil and were given Aleve. Grimmelmann's account borders on hilarious. Here's an excerpt: [Judge Guido Calabresi asked] What if someone types in something at an automated drug counter and a box comes out, half Advil and half Aleve? The specific request, said [Google attorney Michael] Page, made the response an implied representation. Thus, Calabresi asked, [what] is the difference between that and Google? What would be difficult about saying, “These are some other things, not directly what you asked for?” Ah, Page replied, but that’s what we do with our “Sponsored Links” text. That’s when the trap snapped shut.
Hmmm. I know: What if I bought a box of Cheerios and there was Grapenuts inside? You know what Grapenuts does to my teeth? What if I confuse my Ex-Lax with my Viagra? Will I know if I'm coming or going? Oh come on. It was wide open. Unfortunately for everybody, this is kind of important. It seems unduly restrictive of not only speech but also of the free market to disallow competition (or competing viewpoints, if it helps solidify it for you) from appearing in the search results. What Rescuecomm and other companies want is not in the interests of protecting their trademark, but in eliminating Google's ability and right to inform consumers of other options and opinions. Fortunately though, this comedy of judicial errors doesn't decide the case once and for all. It's just a hearing to see if there's merit to overturn a dismissal. If so, Rescucomm gets a trial and Google's legal team gets another chance to destroy a specious argument. If you think the judges had trouble with this one, just wait until they have to learn about meta tags and whether its legal to drop in your rival's trademark in order to snag their organic traffic, too.
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