Google Not Out of The Woods Yet
The question of whether selling other people's trademarks in Adwords constitutes trademark infringement is alive and well. Last week a judge in the Northern District of California refused to dismiss a lawsuit by American Blind & Wallpaper Factory against Google. The Judge indicated that the public has an interest in whether Google is violating the trademark laws. Google has one a couple of these already, but I would bet on a split developing between the Courts on whether selling keywords that are other people's trademarks constitutes trademark infringement.
Tactically, however, I think going after the party purchasing the keywords is a better approach. It is easier to make out a case that a competitor is creating confusion buy using your trademarks to lure traffic than to sue the perverbial 800 lbs gorilla selling them. (American Blind is the largest reseller of window treatments and probably has people buying its trademarks all over the country). Google has the defense that a word that may be trademark in one context is just another term in another. In contrast, if a competitor is directing people looking for your product to their website, you have a better argument that they are attempting to trade off the good will of your trademark and attempting to create initial interest confusion.
Tactically, however, I think going after the party purchasing the keywords is a better approach. It is easier to make out a case that a competitor is creating confusion buy using your trademarks to lure traffic than to sue the perverbial 800 lbs gorilla selling them. (American Blind is the largest reseller of window treatments and probably has people buying its trademarks all over the country). Google has the defense that a word that may be trademark in one context is just another term in another. In contrast, if a competitor is directing people looking for your product to their website, you have a better argument that they are attempting to trade off the good will of your trademark and attempting to create initial interest confusion.
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