Barely a week after insurance giant Geico had a similar lawsuit against Google dismissed, analysts began poring over another such action against the online search kings: Rescuecom suing Google for damage when competitors' ads come up in searches for Rescuecom.
"Defendant Google is promoting, encouraging, enabling and profiting from Rescuecom's competitors 'free-riding' on [Rescuecom's] goodwill and the name recognition it enjoys in its marketplace," according to the litigation filing. "Rescuecom would have realized additional sales, franchisees, customers and revenue from such diverted Internet users were it not for Google's intentional and improper sale of [Rescuecom's] protected trademark 'Rescuecom' as a keyword."
Google has said the Rescuecom litigation has no merit, and they have reason enough to feel confident. On December 15, federal judge Leonie Brinkema turned down Geico's claim that Google should be barred from selling ads to rivals that might show whenever a surfer using Google punches “geico” into the search box.
“There is no evidence," Brinkema ruled, "that that activity alone causes confusion,” as Geico had claimed in its original litigation.
Even if Google prevails against Rescuecom the way they did against Geico, analysts still seem to believe that, American law being unclear on using trademarks without authorization to kick up online ads, "search engines and other trademark owners will spend a lot of time and money in coming years battling the issue in court," as InfoWorld.com put it.
"There have to be more cases and the cases need to get appealed," said intellectual property attorney Sheldon Klein to the magazine. "When you have one of the circuit courts of appeals ruling on something, it carries more weight [than at the district court level] and it's a binding precedent within that entire circuit. We may end up having two or three or more circuits ruling different ways and that's how cases get to the Supreme Court."
Google is far from the only search engine being taken to court in the past few years over practices like AdWords. Overture (now owned by Yahoo), AltaVista, AskJeeves, Excite, Netscape, and CompuServe have faced similar court actions.
Playboy Enterprises, for one, lost a first such lawsuit against Netscape and Excite but won when the company appealed and eventually settled with both Netscape and Excite. Overture was also an original co-defendant in the Geico-Google litigation, but Overture, too, settled out of court.
Geico has sworn to continue "aggressively enforce[ing] its trademark rights against purchasers of its trademark on search engines and against search engines that continue to sell its trademarks," according to a statement by general counsel Charles Davies.
Google isn't exactly worrying. The Geico ruling, according to a statement from Google vice president David Drummond, "confirms that our policy complies with the law, particularly the use of trademarks as keywords."
