Keyword advertising redux

[David Farber <dave () farber net>]

Begin forwarded message:

From: Paul Levy <PLEVY () citizen org>
Date: February 22, 2007 6:11:49 PM EST
To: dave () farber net, ip () v2 listbox com
Subject: Keyword advertising redux

Regarding Whit McNamara's comments, I would tend to agree that the  
Lennar case is a sideshow relative to the larger issue of how  
trademark law treats the more normal course of keyword advertising in  
the commercial context, which was the issue in JG Wentworth.

In that regard, the issue of commercial keyword advertising is now  
pending before the US Court of Appeals for the Second Circuit,  
because Rescuecom appealed the dismissal of its complaint against  
Google based on Google's defense that keyword advertising does not  
"use" trademarks in the sense required for liability under the Lanham  
Act.  The trial court decision relied on the Second Circuit's ruling  
back in 2005 in the When-U case , holding that pop-up advertisers are  
not engaged in "trademark use."

Several groups filed amicus curiae briefs today supporting Google's  
position in one way or another.  Ours is on our web site at http:// 
www.citizen.org/documents/rescuecomamicus.pdf
Eric Goldman and Stacey Dogan wrote a brief on behalf of a group of  
trademark law professors, available at http://claranet.scu.edu/ 
tempfiles/tmp31118/ 
rescuecom_v_google_law_profs_amicus_brief_as_filed.pdf

EFF filed a brief too, I assume it will be up on their web site  
soon.  There is also to be an amicus brief filed on behalf of several  
technology companies, which I have not yet seen.

Eric Goldman has indicated that he plans to post all of the amicus  
briefs in the case sometime next week, I assume it they will go up on  
his blog, http://blog.ericgoldman.org/.



Begin forwarded message:

From: "W.B. McNamara" <whitney () absono us>
Date: February 21, 2007 3:45:30 PM EST
To: David Farber <dave () farber net>
Subject: Re: [IP] Using keyword advertising to promote a gripe site


Dave -

A related decision was handed down earlier this year:  in J.G Wentworth
SSC Ltd v. Settlement Funding LLC, the courts found that buying a
keyword for targeting purposes did not constitute trademark
infringement.  The court held that:

"Even accepting plaintiff’s allegations as true -- i.e., assuming that
defendant did in fact use plaintiff’s marks through Google's AdWords
program or in the keyword meta tags for its website -- as a matter of
law defendant's actions do not result in any actionable likelihood of
confusion under the Lanham Act."

It's important to note, however, that in the case above the trademark
was used exclusively for targeting -- it didn't appear anywhere in the
ad that appeared as a result of that targeting.

The Lennar case is interesting because it's hitting two online trademark
hot-buttons:  using trademarked terms as search ad targeting criteria,
and an interesting variation on the "sucks" sites issue, whether it's
trademark infringement to maintain a Web presence promoting the idea
that [trademarked term] sucks, whether commercial or not.

Link to info on Wentworth:
http://blog.ericgoldman.org/archives/2007/01/keyword_ads_and.htm

- Whit

--
W.B. McNamara
whitney () absono us
http://absono.us

On Wed, 21 Feb 2007, David Farber wrote:
>
>
> Begin forwarded message:
>
> From: Paul Levy <PLEVY () citizen org>
> Date: February 21, 2007 3:48:30 PM EST
> To: dave () farber net
> Subject: Using keyword advertising to promote a gripe site
>
> I wanted to alert you to a case that delves into a new area of First
> Amendment rights on the Internet and in which Public Citizen today
> filed an amicus brief. The case involves trademark infringement
> claims related to keyword advertising purchases and domain names.
> Although Public Citizen has litigated several cases involving
> trademark claims against domain names of Internet ?gripe sites,? this
> is the first case in which Public Citizen has been involved dealing
> with the trademark ramifications of noncommercial, keyword ad
> purchases ? a relatively new area of litigation ? that are protected
> in most cases by the First Amendment.
>
> The case involves national developer Lennar Corporation, based in
> Miami, which sued a Florida realtor for trademark infringement for
> his online criticisms of the company. Michael Charles Morgan was a
> broker for several customers who were unhappy about alleged defects
> in Lennar-built homes. After Morgan?s complaints to the company did
> not receive satisfactory responses, he created two noncommercial Web
> sites that included criticism and media reports about Lennar and more
> general consumer information.
>
> Morgan registered the domain names www.defectivehomes.us and
> www.lennar-homes.info. Morgan also purchased keyword advertising to
> be displayed when a search engine user conducts searches for Lennar.
> An example included:
>
> Lennar Homes - Warning
> Defective Homes - Code
> Violations Detailed
> Home Inspections Required
> www.DefectiveHomes.us
>
> Although Morgan?s sites and ads were clearly noncommercial and
> intended to warn consumers about problems with Lennar Homes, the
> corporation sued for trademark infringement.
>
> Public Citizen has a record of defending the First Amendment right of
> Internet users, particularly the rights of gripe site operators to
> use domain names that include the names of companies or products they
> are criticizing.
>
> To read the amicus brief in this case, visit http://www.citizen.org/
> documents/lennaramicus.pdf.
>
> To get more information about Public Citizen?s work involving First
> Amendment rights on the Internet, visit http://www.citizen.org/
> litigation/briefs/IntFreeSpch/.
>
>
>
>
> Paul Alan Levy
> Public Citizen Litigation Group
> 1600 - 20th Street, N.W.
> Washington, D.C. 20009
> (202) 588-1000
> http://www.citizen.org/litigation
>
> -------------------------------------------
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--
W.B. McNamara
whitney () absono us
646-NEptune7-7791
http://absono.us


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Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation

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