The ABA recently published a short article about the Rosetta Stone adwords case. The article notes that large swaths of the pleadings and motions in the case were redacted, which made it difficult to see what was going on. Google certainly has a vested interest in keeping its trade secrets from the public, and rightly so, but there’s a legitimate question as to whether Google is overreaching with its protective requests. Although the bloggers/public interest group involved were successful in forcing an un-redacted brief, the ABA article notes that there’s still a big chunk of the evidentiary record that hasn’t been unsealed. It will be interesting to see what Google is ultimately able to keep from the public eye, and what it isn’t. (Of course, chances are, the parts we’ll see won’t be particularly earth-shattering.)
As for the litigation itself, this case is about Rosetta Stone’s anger at its competitors bidding on ads that contained Rosetta Stone, its trademark, as a keyword. So the question is, is this activity trademark infringement? The District Court judge didn’t think so, and granted summary judgment for Google (see Eric Goldman’s post for detailed information on the win for Google).
I agree with the position that it is difficult to see how an invisible keyword used to trigger a paid advertisement could lead to customer confusion. In addition, I believe (and maybe I’m a bit ahead of the pack, here) that we as an English-speaking population are becoming much more savvy with out Internet use in general, and are perfectly capable of distinguishing between a paid advertisement for Product_A and one for Product_B, where both products are of a similar type but have different names, and we just did a search for Product_A. If we would not be confused into thinking that Product_B was really Product_A, how could the search engine/ad server possibly be liable for trademark infringement?
Perhaps as backup for my position, Bing/Yahoo recently announced that they were going to follow Google’s lead and start allowing the purchase of trademarks as keywords for sponsored ads. Perhaps they’ve seen the writing on the wall, as Google has yet to be held liable despite being sued more than a few times in federal court.