We all know what a trademark is. Drawings or symbols to indicate ownership have been around since the cave man days, so you'd think we'd have things settled by now. Sadly for the world, but happily for law geeks like me, that is not the case.
Computer repair company, Rescuecom, recently abandoned its AdWords litigation against Google.
When this blog was only a newsletter, I wrote about the trend of trademark owners to sue Google for selling their marks as AdWords (hyperlink to paper document not...working). As a trademark owner, I could see how this practice would be infuriating. Do No Evil, Inc. allows customers to bid on terms that will be used as keywords and even actively encourages customers to purchase certain keywords, frequently protected trademarks (want to advertise for cars? Here, purchase the keyword "Volvo"). That would tick me off.
At the same time, I don't see Georgia Pacific suing Proctor & Gamble when I buy Quilted Northern toilet paper at Safeway and they spit out a coupon for Charmin. So, apparently, this Internet thing has people's attention (paper coupons at Safeway, not so much). One of my favorite legal blawgers out there, Professor Eric Goldman from Santa Clara University, keeps a running tally of the number of cases against Google. It currently stands at nine. Google is clearly defending a revenue stream.
Federal law requires generally that a trademark owner demonstrate that an infringer is (1) making a use in commerce of the trademark, and (2) that it is likely to cause confusion or mistake, or to deceive. Are you really confused when you type "Volvo" into Google and an ad for Toyotoa comes up?
Probably not. But it's not hard to imagine a scenario where it could become so.
In other news, trademark law got an unexpected boost from fake news program, The Colbert Report. During the Olympics, Stephen Colbert did a funny bit with his brother about the voracity with which groups like the Olympic Committee defends their trademarks. Check it out if you have time. And if you want to get really crazy this weekend, see what happens if you try to buy "Olympics" or "Super Bowl" as an AdWord. I think the lawyers might actually descend upon your house from helicopters...