Google's keyword advertising system faces a number of legal
challenges in the US and in Europe over the extent to which it
breaches trade mark rights. Rescuecom's case was one of the oldest
and so one of the furthest-advanced, but it has now been
dropped.
Companies that want to advertise next to the results from
Google's search engine pay for their ads to appear when a chosen
term is searched for by a user. Those whose ads are relevant and
who pay the highest in relation to that term have their adverts
placed most prominently.
Rescuecom objected to the fact that competitors could pay to
have their ads displayed when a Google user searched for the term
'Rescuecom' and claimed that Google violated its trade mark rights
by allowing other people to purchase its trade marked term as a
keyword.
A New York court said in 2006 that the activity was not against
the law because trade mark law only controlled the use "in trade"
of a term, and that Google was not using the term in trade.
That ruling was overturned on appeal last year, though, and the
case returned to the original court for a full hearing. Rescuecom
has now abandoned its suit.
Though Rescuecom said that it can "declare victory" in its
dispute with Google and can therefore withdraw the suit, it has not
won any extra concessions from Google on the issue.
In fact Rescuecom has now become involved in another keyword
suit, but on the other side of the issue. It has been sued by
competitor Best Buy, which claims that it is using its trade marked
terms to trigger Rescuecom ads.
Best Buy, whose PC support business is called the Geek Squad, is
making similar claims against Rescuecom that it made against
Google.
"Rescuecom seeks declaratory judgment that it may use the term
'geek squad' as a keyword for a sponsored link which clearly
engages in comparative advertising," said a Rescuecom
statement.
"We've accomplished most of what we wanted to accomplish with
this action against Google," said Rescuecom chief executive David
Milman. "The Second Circuit's decision clearly rejected Google's
argument that its sale of trademarks as keywords deserves some
special protection from Trademark Law. Clear and non-confusing use
of trademarks on the Internet – such as Rescuecom's own advertising
– should be permitted. However, the use of trademarks which is not
clear and can confuse consumers, violates US Trademark law and is
not in anyone's best interests."
Google's policy of allowing one company to buy another's trade
marked terms as keywords used to operate only in the US and Canada,
but it was extended in 2008 to the UK and Ireland.
Advertisers are eagerly awaiting a ruling due later this month
on the issue from the European Union's top court, the Court of
Justice.
The Court will rule on three cases together and will decide
whether the use of another company's brand as a keyword is a breach
of that firm's trade mark rights.
Already the Court's legal advisor, one of its advocates general,
has said that the use of keywords is allowed because to ban it
would be to expand the scope of trade mark protection too far, and
that such keyword activity does not confuse consumers.
That ruling is due on 23rd March.
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