Google has faced a string of law suits claiming that it breaks
trade mark law when it allows third parties to buy the right for
their ads to appear when another company's trade mark is typed into
the search engine.
Ascentive has gone one step further, though, and has claimed
that Google broke the law in the US when, after a dispute, it took
Ascentive's website off the index used by its search engine,
effectively making the site invisible to the world's biggest search
engine.
Ascentive sells software that it says cleans computers of
spyware and allows remote viewing of the use of a computer to allow
parents to monitor children's access. Anti-malware non-profit
Stopbadware.org, though, said that an earlier version of the
software could harm computers.
Ascentive changed its software because of Stopbadware's
concerns, but it said that the Stopbadware warnings may have been
the reason that Google suspended not only Ascentive's advertising
account but also its presence in Google's natural search
results.
A Google response to Ascentive said that the action was because
of "multiple policy disapprovals", according to court
documents.
Ascentive made clear in its lawsuit, filed at the US District
Court for the Eastern District of Pennsylvania, that its business
depends on the internet, and to a large extent on Google. "In 2008
Ascentive derived approximately 99 per cent of its revenues from
online sales from its websites," it said. "Google's willingness to
display links to Ascentive's websites in its natural search
listings is…crucial to internet users' ability to locate
Ascentive's websites."
Ascentive argues in its suit that by not including it in its
natural search listings, Google is interfering with "prospective
contractual relations".
"Prospective customers searching for [Ascentive brand]
'Finallyfast', which Google estimate number about 110,000 internet
users a month, previously saw displayed a link to
Ascentive's www.finallyfast.com website," it
said.
"As a result of Google's actions, these customers now see
displayed only the advertisements and websites of third parties,
including competitors of Ascentive that continue to make
unauthorized use of Ascentive's trademarks," said the suit. It said
that Google "intended to harm" Ascentive.
The law suit also makes claims against Google's keywords
advertising system. Google's AdWords displays adverts according to
the payment made by advertisers to have their promotions appear
when certain keywords are put into the search engine.
There have been disputes about whether one company paying to
have its ads displayed when another company's trade mark is
searched for represents trade mark infringement.
Google's policy in the US and the UK allows the use of other
people's trade marks as a trigger for an ad but does not allow the
use of that term in the ad itself.
Google refined that policy recently in the US only, where it
said that a business could use someone else's trade mark in the ad
without that company's permission if it sold the goods referred
to.
In 2006 A New York court threw out a case arguing that the use
of a trade mark as a trigger was trade mark infringement. A
previous case had been settled out of court.
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