On Monday, we discussed the settlement Google reached with Rosetta Stone in a trademark infringement lawsuit the language learning software company had filed against the search engine website three years ago. On November 8, 2012, Eric Goldman, Director of the High Tech Law Institute and Associate Professor at Santa Clara University School of Law authored a column for Forbes.com entitled, “Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit.”
Goldman noted that “there have been countless trademark lawsuits over competitive keyword advertising” during the last dozen years, but only a few such cases reached a final outcome in a United States court. One recent ruling demonstrated why trademark owners rarely win, according to Goldman.
CollegeSource—which Goldman wrote owns the trademarks “CollegeSource” and “Career Guidance Foundation”—had sued AcademyOne for “a laundry list of perceived wrongs, including competitive keyword advertising.” According to Goldman, AcademyOne purchased the keywords “college,” “college source,” “career guidance” and “career guidance foundation” in Google AdWords. While its ad copy displayed the titles “College Transfer Help” or “Find Transfer Information” and the domain name “collegetransfer.net,” it did not include CollegeSource’s trademarks.
Among the reasons that Goldman listed for the court’s decision to grant AcademyOne’s summary judgment motion, he pointed out that CollegeSource’s evidence of consumer confusion included a mere 65 clicks on AcademyOne’s ads in one month. Furthermore, Goldman wrote that the ads were clearly presented to consumers in light of “the entire context of the advertisement’s appearance, especially the clearly differentiated [Sponsored Link] text boxes and the fact that CollegeSource’s name does not appear within the language of the advertisement.”
“Irrespective of their legal merits, competitive keyword advertising lawsuits often involve trivial amounts of clicks and revenues,” Goldman wrote. “Between the long odds in court, the low/trivial financial stakes at issue and the improbability that consumers are being misled, there are several good reasons for trademark owners not to bring lawsuits over competitive keyword advertising.”
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