| Spots & Space August 21, 2007 |
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The Word “Copyright” Keeps Google Lawyers Busy Day And Night Whether it Be For Selling Alleged Trademark Infringements On AdWords Or Listing Third Party News Items On Its News ServiceBeing a Google lawyer just got a whole lot busier – the world’s largest airline, American Airlines, is suing the world’s largest media company, Google, for allegedly selling its trademarks as keywords to third parties that use them to advertise within Google’s AdWords service.
American Airlines is a Google customer, promoting its various trademarks within advertising keyword search. What it doesn’t like is Google selling, say, “American Airlines” within the AdWords search service to a third party wanting their web sites to appear as possible selections when such a specific search term is used. American basically says if it owns the copyright then others can’t sell that copyright use to others. And that‘s where the federal court suit comes in. American has a pretty strong no-nonsense reputation when it comes to litigation. So it is a bit surprising to see the company issue a statement after news of the law suit broke in which it took pains to defend its overall business relationship with Google, and that it was just this one point on which the two companies were at odds.
“American Airlines appreciates and values the importance of the Internet and the convenience that companies such as Google create for consumers around the globe. The accessibility and ease of use of these search engines are important assets for end users and commercial enterprises,” its statement said. “The business issue American has with Google is not related to their overall business model. Rather, the dispute is centered on Google's process of allowing other companies to purchase the right to use American Airlines trademarks for Internet search. In working through this business dispute, American is hopeful that it will continue professional, friendly and fruitful relationships with Google, while finding an appropriate resolution to the trademark issues. Reading between the lines it’s fairly obvious the two companies have been discussing the issue for some time but it has not progressed as American wished. So the lawyers basically told the airline, “Let’s get their attention by filing a lawsuit, ask for unspecified damages, but show a willingness to continue talking. That should get their attention.” In the US they call that “hardball”. In the past Google has been successful in the US in ensuring no such case has ever gone to a jury trial. Perhaps the most serious case up to now is the one involving Geico Insurance in which a court ruled against the car insurance company, saying it had not sufficiently proven that Google’s sale of its trademark name to a third party for search-related advertising had caused much consumer confusion. So can American prove consumer confusion with what is happening to its trademarks? A more serious problem may come, however, more immediately from another case that has slowly been making its way through the courts. American Blind and Wallpaper Factory first filed its trademark suit four years ago. In 2005, a New York Federal court ruled the suit could continue based on claims of trademark infringement, unfair competition, contributory trademark infringement and contributory dilution, but the court also threw out the company’s claim of “tortuous interference with prospective business advantage." The company wanted stopped Google’s sale of its trademarks in keyword search bought by other companies given that competitors' ads can appear on results pages turned up by searches for "American wallpaper" and "American blind." When Google began its advertising keyword search business it had avoided including trademark names, but it became obvious to its marketing people they were letting huge amounts of revenue slip through their fingers by doing that. So back in 2004 the company made a strategic decision, probably based on the best legal advice money could buy, that it was worth the legal gamble to start marketing other people’s trademarks, too. At the time Sheryl Sandberg, Google's vice president of global online sales and operations, said “By letting people restrict certain words, you're not getting the results that people expect from Google."That was then seen as “almost a declaration of war on trademark owners,” according to Terence P. Ross, a trademark attorney at Gibson Dunn & Crutcher. And guess who is the lead counsel for the American Airlines suit. Yes, the very same Terence P. Ross. The monetary importance to Google in changing its policy to allow trademark sales was made clear at the time by Eric Goldman, a law professor at Marquette University, who had followed legal issues related to search engine advertising. "Google can't be a multibillion-dollar company if they disable trademarked keywords at anyone's request." Google explained at the time, “We do not believe that Internet users are likely to be confused by the clearly labeled text ads that appear on Google. If any confusion is possible, we believe it is caused by the ad text, which is why our policy focuses on use of trademarks in ad text." All one has to do is look at Google’s going public a year later in August, 2005, at $85 a share and its current share price of just under $500 to see how important a revenue earner the keyword search is, and how financially important the trademark sales are within that service. That’s why the company will spend whatever it takes to protect legally that revenue and why it takes a major company like American Airlines to force the issue. Other companies that also object to Google’s trademark policy will fear that Google will eventually settle out-of-court privately with American Airlines – Google likes to make such private deals without releasing details as it did in the AFP copyright case, its deal with the Associated Press, and even what it is working on with Belgian publishers who won a copyright suit that is now on appeal. If that comes about one way to check the results will be to do a search on the likes of “AA.com, or AAdvantage” and see what shows, although a possible deal could include a revenue share (Google likes revenue share deals) if a third party buys one of the airline’s trademarks. But if there is such a deal the likelihood is we’ll never know the details. Google needs that secrecy within its out-of-court settlements. The last thing it needs is a landslide of others crying out, “Me too!” | |||
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It’s not the first time Google has faced such a lawsuit – and the results have been different in different jurisdictions and there has been some settling out of court so case law is all over the place – but no real biggie like American Airlines has entered the fray before. Google usually was pretty secure because it has the best copyright lawyers that money can buy, but it now has an adversary that can also afford the best copyright legal brains money can buy, so this time things could get interesting.