American Blind & Wallpaper Factory Throws in The Towel
After three years of pursuing Google for selling its trademarks to the highest bidder, American Blind & Wallpaper Factory has settled the case with no payment from Google. SEO types should be pleased as Google once again is victorious in its ability to sell trademark search terms. What did American Blind get out of the law suit - (other than a large legal bill) ? An agreement by Google that it will not change its trademark policy.
While the settlement pleases many like Eric Goldman, a professor at Santa Clara University School of Law, it is a disappointment for us "purists" who would like to see the issue actually go to trial. The American Blinds case had been pending since 2004 and had a November trial date.
The real issue that needs to be resolved is whether selling the trademarks of companies as search terms creates a likelihood of confusion. When a customer types in a key word, does he or she believe that the top result is the company. Commonly referred to as initial interest confusion, the argument of trademark owners is that customers are confused and that competitors are stealing away customers who are looking for the trademark owner. How would you feel if your competitor hung a sign out front with the name of your business, only to tell customers after they entered the store that they were really the competition. Or put your name in the telephone book next to their telephone number? Unfortunately, proving that consumers were confused is often difficult, if not impossible, because they rarely call you up and tell you they were confused. While the test is actually "likelihood of confusion", this is often a hard issue for courts to wrap their arms around.
Many people who criticized American Blinds argue that consumers are not likely to be confused. The people making this argument, however, are generally highly "sophisticated" consumers. With the spread of the Internet, there are a lot more people using search terms who may not be as careful. The real test for adwords, etc., will be what the survey evidence shows and whether there is adequate evidence one way or another on confusion.
The issue, however, will have to wait. While Google won this round, American Airlines is the next contestant in adwords legal gameshow. Lets hope the case actually makes it to trial.
While the settlement pleases many like Eric Goldman, a professor at Santa Clara University School of Law, it is a disappointment for us "purists" who would like to see the issue actually go to trial. The American Blinds case had been pending since 2004 and had a November trial date.
The real issue that needs to be resolved is whether selling the trademarks of companies as search terms creates a likelihood of confusion. When a customer types in a key word, does he or she believe that the top result is the company. Commonly referred to as initial interest confusion, the argument of trademark owners is that customers are confused and that competitors are stealing away customers who are looking for the trademark owner. How would you feel if your competitor hung a sign out front with the name of your business, only to tell customers after they entered the store that they were really the competition. Or put your name in the telephone book next to their telephone number? Unfortunately, proving that consumers were confused is often difficult, if not impossible, because they rarely call you up and tell you they were confused. While the test is actually "likelihood of confusion", this is often a hard issue for courts to wrap their arms around.
Many people who criticized American Blinds argue that consumers are not likely to be confused. The people making this argument, however, are generally highly "sophisticated" consumers. With the spread of the Internet, there are a lot more people using search terms who may not be as careful. The real test for adwords, etc., will be what the survey evidence shows and whether there is adequate evidence one way or another on confusion.
The issue, however, will have to wait. While Google won this round, American Airlines is the next contestant in adwords legal gameshow. Lets hope the case actually makes it to trial.
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