Nearly Every Company That Hates Google Piles On To Rosetta Stone Case

For many, many years, we've covered the long list of cases involving some company suing Google because someone else bought an AdWords ad based on a keyword that the plaintiff had the trademark on. As we've discussed over and over and over again, these lawsuits make little sense for a couple of reasons. First, a trademark does not give you total control over the word, but only in cases where there is a likelihood of confusion (or dilution, though, that's a bit of a separate issue). Having a competitor advertise on your keywords is unlikely to confuse anyone. It's perfectly reasonable to try to put your ads where people are looking for your competitor's products. It's why when you go to the supermarket, they often will hand out coupons to you for competing products to what you've bought. That's not illegal, it's competition. Second, if there actually is any confusion in the ad, the liability would be on the advertiser, not on Google.

Thankfully, in most of these cases, the courts have recognized this and Google has prevailed. One high profile one, decided a few months back, was an attempt by language software firm, Rosetta Stone, to sue Google over ads on the site. Rosetta Stone failed badly, and while there were some quirky aspects to the ruling, it got the "big questions" right.

Rather than recognizing the nature of trademark law, Rosetta Stone is appealing, and the case is generating a lot of attention. Eric Goldman has a rundown of amici briefs supporting Rosetta Stone's position, and it's basically a "who's who" of companies who hate Google and are or were involved in other lawsuits against Google. You have Viacom and Blue's Destiny, who both sued (and lost to) Google on copyright issues. It seems they're hoping that if secondary liability in trademark can be applied to Google on this issue, perhaps they can use it to argue for more secondary liability in copyright law. That's a longshot, and it's a pretty childish reason to file an amicus brief here. There are some other companies that have sued over trademark keyword advertising in the past... And then there's the Association for Competitive Technology (ACT) and the Business Software Association (BSA), both of which have very strong ties to Microsoft. This seems really strange, because a loss for Google here would absolutely harm Microsoft. As Eric Goldman notes:

Could Microsoft be foolish enough to use this lawsuit as an opportunity to tweak its arch-enemy Google, even though an adverse ruling in this case would almost unquestionably be against Bing's best interests?

Even more bizarre is that eBay also has pretty strong ties to ACT, and eBay has been fighting against a long series of ridiculous secondary liability trademark claims from luxury goods makers (many of whom signed on to the exact same brief by ACT. It would appear that this brief actually appears to go against many of the best interests of ACT's largest members. A very strange move by ACT who should know better.

One other oddity: apparently Rosetta Stone's opening brief in the case was heavily redacted for no good reason, which seems problematic on such a high profile case that could impact a variety of technologies and services. Thankfully, Paul Levy saw this and questioned why there were so many redacted parts, and the lawyers have agreed to release an unredacted version of the brief.

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Source: http://www.techdirt.com/articles/20101104/02164911714/nearly-every-company-that-hates-google-piles-on-to-rosetta-stone-case.shtml

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