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New Internet free speech case
From: David Farber <dave () farber net>
Date: Fri, 30 Jul 2004 13:18:41 -0400
Begin forwarded message: From: Paul Levy <plevy () citizen org> Date: July 30, 2004 11:27:46 AM EDT To: dave () farber net Subject: New Internet free speech case Today we have filed an amicus curiae brief expressing our views about the lawsuit brought by GEICO in federal court in Virginia, alleging that the keyword advertising programs operated by Google and Overture inherently violate the trademark laws when they sell advertising in connection with searches that include a trademarked term. Our argument is that there is nothing inherently improper about keyword advertising, even when it is delivered to search engine customers who search for trademarked terms. Although we are concerned that some keyword advertising has become more prominent in search results than the non-paid results, that is not a trademark issue and the problem is not confined to searches based on trademarked terms. Unlike most of our cases, which involve abusive litigation based on trademark or other theories brought by companies against consumers who dare to criticize them online, this is a case fought among three big companies who are more than able to afford the finest lawyers to protect their own interests. But our concern is with the impact on the general public of GEICO's expansive trademark theories, which take laws designed to produce truth in commercial advertising and promotion, and turn them on their head to suppress truthful advertising in which one company seeks to take business away from another company by targeting its ads at the first company's potential customers and persuading them that the second company has a better or cheaper product to offer. In the course of our defense of non-commercial "gripe site" operators, we have found time and again that we had to distinguish away bad precedents that had been set in trademark cases fought among commercial competitors. As a general matter, we think that, thanks to the ingenuity and creativity of some of the more aggressive practitioners of intellectual property law, trademark law has been getting just a bit too big for its britches, and has been applied to the Internet in a manner that suppresses fair competition. We hope that our filing in this case is just one step in a campaign to keep trademark law confined to its original purpose, which it to protect consumers against false claims of sponsorship, not to protect trademark holders against competition. Our press release follows. The brief can be found on our web site at http://www.citizen.org/documents/ACF4F0.pdf For Immediate Release: Contact: Paul Alan Levy (202) 588-1000 July 30, 2004 LuAnn Canipe (202) 588-7759 GEICO v. Google: Insurance Company Tries to Limit Consumer Access to Information on the Worldwide Web Public Citizen Files "Friend of the Court" Brief in Support of Search Engines' Free Exchange of Information WASHINGTON, D.C. - A consumer searching online for information about an insurance company should not be barred from seeing ads from that company's competitors, Public Citizen said today in a "friend of the court" brief involving a lawsuit filed by Government Employees Insurance Company (GEICO). GEICO has filed suit against two major Internet search engine operators, Google Inc. and Overture Services Inc., in an effort to suppress advertising by competing insurance companies and online insurance brokers. GEICO is claiming trademark infringement, alleging that the search engine operators violate trademark rights by allowing other insurance companies to advertise to consumers who display an interest in obtaining information relating in some way to GEICO by using the registered trademark "GEICO" as a search term. In its amicus brief, Public Citizen asked the U.S. District Court for the Eastern District of Virginia to reject the lawsuit against Google and Overture, contending that there is nothing about "keyword" advertising that inherently violates trademark laws. Trademark law protects against the misuse of a mark to create confusion about whether particular goods and services emanate from the trademark holder. "In this case, GEICO's assumption that any member of the public using the term 'GEICO' must be searching for the official company Web site is preposterous," said Paul Levy, the Public Citizen attorney who wrote the amicus brief. "The user may be looking for information about the trademark, or about the trademark holder. He may be looking for historical information. The user may have a grievance about the trademarked item and want more information about other similar grievances." Although its principal concern is to protect consumers who want to use non-commercial Web sites to speak about corporations, Public Citizen is also interested in protecting the free speech rights of commercial entities, thus enabling companies to make information more available to consumers and increasing consumer choices while fostering competitive pressures that reduce product prices. It remains a concern that search engines are becoming increasingly commercialized. It is important that search engines focus on clearly disclosing which listings are the result of paid advertising, and that the paid listings not crowd out the unpaid listings. There is a real danger in the system that displays paid search results before displaying impartial listings, but these problems are not trademark issues. "The Internet provides a tremendous opportunity for ordinary citizens to express their views, and to have them heard, and by the same token, it provides an opportunity for consumers to obtain information that they may need to protect their economic and political interests," Levy said. "It is vitally important that the legal rules governing use of the Internet be crafted to provide a maximum opportunity for the free exchange of information." Public Citizen's local counsel in the case is Raymond Battocchi of McLean, Virginia. A copy of the brief is available on the Web at: http://www.citizen.org/documents/ACF4F0.pdf ### Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please visit www.citizen.org. Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html ------------------------------------- You are subscribed as interesting-people () lists elistx com To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/
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