American Airlines is the latest in a series of brand holders to
sue over Google’s AdWords system.
Registered marks including American Airlines, American Eagle, AA
and AA.com are being sponsored as keywords by other companies to
trigger adverts when internet users search on the terms. That is
trade mark infringement, the lawsuit says. It complains that Google
has different policies for different parts of the world: trade mark
rights in the US and Canada are afforded less protection by Google
than rights held elsewhere, it notes.
The airline giant wants a jury trial and an award of punitive
damages “in an amount sufficient to deter other and future similar
conduct by Google and others,” it says.
"The dispute is centred on Google's process of allowing other
companies to purchase the right to use American Airlines trademarks
for internet search," said an American Airlines statement.
"American Airlines wants to make it clear that its dispute does
not seek to prevent the display of search results that reflect
consumers' interests or choices. American Airlines is only asking
Google to stop selling our trademarks to others who are purchasing
them and related terms to confuse and/or divert consumers searching
for AA.com or American's products," it said.
"The fundamental purpose of trade mark law, in the
bricks-and-mortar world and the internet, is to protect consumers
from being confused as to the source or affiliation of the products
or services that they seek to buy," said the American Airlines
suit.
"Unfortunately some individuals and entities attempt to take
advantage of consumers by marketing their products or services
using the brands of others," said the suit. "In effect, they seek a
free ride on the reputation and goodwill of another's brand.
Because of the ease and low cost of setting up a website and the
speed with which internet transactions occur, this has become a
particular and growing problem in connection with consumer
purchases of goods and services on the internet."
"This lawsuit involves exactly such a situation – efforts by
certain companies to free ride on American Airlines' brands through
use of Google's technology," it said.
Under Google’s trade
mark policy for the US and Canada, Google will handle
complaints from brand holders about the text of a third party
advert, but not complaints about the keywords that trigger the
ads.
Google’s policy for the US and Canada states:
When we receive a complaint
from a trademark owner, we only investigate the use of the
trademark in ad text. If the advertiser is using the trademark in
ad text, we will require the advertiser to remove the trademark and
prevent them from using it in ad text in the future. Please
note that we will not disable keywords in response to a trademark
complaint.
Its policy for trade mark rights outside the US and Canada
extends to the text of ads and the keywords. It states:
When we receive a complaint
from a trademark owner, our review is limited to ensuring that the
advertisements at issue are not using a term corresponding to the
trademarked term in the ad text or as a keyword trigger. If they
are, we will require the advertiser to remove the trademarked term
from the ad text or keyword list and will prevent the advertiser
from using the trademarked term in the future.
The lawsuit states: “Google appears to have the ability to
structure and configure its programming to stop this misuse of the
Amercian Airlines Marks because it has already implemented
procedures with respect to European Internet users that prevent the
misuse of trademarks. Google, however, has chosen not to implement
these procedures for Internet users in the United States to the
detriment of consumers and American Airlines."
Even Google’s policy of checking the text of ads in the US in
response to a complaint falls short of an affirmative commitment to
prevent such infringement, says the lawsuit. Google says its
willingness to investigate exists only “as a courtesy” and not as a
matter of binding policy. American Airlines says it is unfair to
put the onus on the trade mark owner to identify and complain about
each infringing use; Google’s content changes too fast, it
says.
American Airlines is also complaining about the text that
appears in ads. It argues, “Google’s programming is not preventing
all advertisers from posting advertisements that make use of terms
that are confusingly similar to the marks of others, or are
otherwise formatted in a way that is likely to cause consumer
confusion.”
The suit also accuses Google of double-standards. It quotes
Google’s policy on the use of Google’s own marks. “Google, in its
own words, instructs the world not to ‘mess around with our marks.
Only we get to do that’”, notes the lawsuit. “Google does not,
however, treat the marks of other companies with such respect,”
observes American Airlines.
Until April 2004, Google respected requests from companies that
asked it to prevent their marks from being available for
sponsorship, though Google has always allowed trade mark holders to
request that their marks do not appear in the text of ads. The US
and Canada policy change, allowing a trade marked term to trigger a
third party ad, provoked litigation. The highest profile case was
brought by car insurance firm GEICO.
Google won a significant victory in that case in December 2004,
though the written opinion only followed many months later. A
Virginia court ruled that Google’s sale of GEICO trade marks as
keywords was not unlawful because there was insufficient evidence
of consumer confusion.
There was, however, evidence for a likelihood of confusion with
regard to those sponsored links that used GEICO’s trade marks in
their headings and text, said the judge. Google may have been
liable for such uses, she said, for the period before it blocked
such ads or where its blocking attempts failed. The case was
settled by GEICO and Google before the remaining question of
whether Google or its advertisers should be liable for such uses
was resolved.
In April 2007, a California court refused Google’s request to
dismiss another similar lawsuit. That case, brought by the American
Blind & Wallpaper Factory, is now scheduled for a jury trial.
Judge Jeremy Fogel said: "The large number of businesses and users
affected by Google's AdWords program indicates that a significant
public interest exists in determining whether the AdWords program
violates trademark law.”
