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Google v. American Blind: Staying in Line with Online Advertising?
One of the hot intellectual property topics for 2005 ' and perhaps beyond ' is whether the sale and use of trademarks as keywords constitutes trademark infringement, and, if so, who is liable for that infringement. How the courts ultimately resolve this issue will affect the billion-dollar Internet advertising industry, those who participate in online advertising and those seeking to prevent the unauthorized use of their trademarks on the Internet. This article discusses Google v. American Blind & Wallpaper Factory, Inc., 2005 U.S. Dist. LEXIS 6228 (N.D. Cal. Mar. 30, 2005), the most recent case to address the emerging issue of “markmatching” in Internet contextual advertising, and its relationship to trademark infringement.
In American Blind, the Federal District Court for the Northern District of California denied Google's motion to dismiss a trademark infringement case involving Google's sale of American Blind's trademarks as keywords for Internet advertising. Google had filed an action seeking declaratory relief, claiming that use of its AdWords advertising program to sell American Blind trademarks and close variations thereof does not infringe American Blind's trademarks. American Blind counterclaimed, alleging trademark infringement, dilution, false representation, injury to business reputation, unfair competition, tortious interference with prospective business advantage, and in the alternative, contributory trademark infringement and dilution.
Through Google's AdWords program, advertisers may purchase or bid on certain keywords or phrases that also are trademarks. Essentially, AdWords matches contextual advertising with the end user (ie, the consumer) based on pre-selected terms, which can be a trademark. “Markmatching” is the process of linking competitors' trademarks with contextual advertising. The advertisers' links then will appear prominently when an Internet user enters those keywords into a search engine, which was precisely the case in American Blind.
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