Much Ado About Standards of Review (But Not All That Much About AdWords)

On April 9, in Rosetta Stone Ltd. v. Google Inc., No. 10-2007 (4th Cir. Apr. 9, 2012), the Fourth Circuit issued the latest opinion in the Google AdWords wars, this time in support of the challenger, Rosetta Stone. While on the surface the Rosetta Stone opinion might seem to be a public rebuke of the merits of Google's AdWords program, on closer scrutiny it is clear that the Fourth Circuit's opinion is more properly read as a reprimand of the district court, which, according to the Fourth Circuit, improperly mixed its standards of review and made a hash of the functionality doctrine in the process. The panel remanded for a proper application of the summary judgment standard and took no firm stance on the hot-button issues of whether Google's AdWords program makes a “use in commerce” of stakeholders' trademarks and whether, assuming so, there is any likelihood of confusion.