Whenever I run across another copyright infringement case based on PPC keyword buys at search engines, it always catches my attention as I am one that has also battled over competitors using our trademarks. ClickZ reports on one of the latest legal battles where Edina Realty, a subsidiary of HomeServices of America, has filed suit against TheMLSonline.com in U.S. District Court of Minnesota.
Edina Realty claims that TheMLSonline.com bought paid search keywords on Google and Yahoo! Search Marketing, including “Edina Realty” and “EdinaRealty.com,” and ran ads with “Edina Realty” in the title or description. Last week, Judge John Tunheim ruled that there was sufficient reason to send the case on to trial. “Awesome,” I say. Guess who I will be cheering for?
ClickZ points out that the case is one of the first lawsuits brought against a keyword buyer, rather than against the search engine itself, on grounds of trademark infringement. “While any single case would not become the final word on the matter, a decision in this one could have some long-term implications,” says Eric Goldman, a professor at Marquette University Law School who teaches courses on cyberlaw and trademark law.
“This ruling puts increased pressure on Google’s policy not to block competitor keyword ad purchases,” Goldman wrote on his Technology & Marketing Law blog. “More importantly, Google’s position has just become legally riskier. To the extent that competitors’ ad purchases constitute direct trademark infringement, Google may face an elevated risk of being deemed a contributory infringer.”
This will certainly be an interesting case to follow. While it is against policy for advertisers to use other’s trademarks in their ad copy on search engines like Google and Yahoo, these same engines have allowed advertisers to use trademarked search terms to trigger ads which has caused a lot of heated debate from the actual owners of the trademarks, this author included.