SW Legal studies in Business

Use of Firm Name as Keyword by Google Is Possible Infringement
Description

Appeals court held that the holder of a trademark could proceed against Google for trademark infringement in violation of the Lanham Act. The use of a trademark as a keyword that Google sold to other companies in their effort to attract searchers may be infringement.

Topic Cyberlaw
Key Words

Trademark; Infringement; Lanham Act; False Designation; Keywords

C A S E   S U M M A R Y
Facts

Rescuecom is a national computer service franchising company that offers on-site computer services and sales. It gets up to 30,000 visitors to its website each month. “Rescuecom” is a valid registered trademark. When keywords bought by advertisers are typed into Google, the keyword triggers a display of paid (sponsored) links. Advertisers pay Google based on the number of time searchers click on the ad to link to an advertiser’s website.  Google used “rescuecom” as a keyword and sold it to competitors of the company, Rescucom. As a result, Rescuscom contends that its trademark was used improperly by Google. It deceived googlers into thinking they may be linked to Rescuecom, when in fact they went to other sites, and the practice diverted others away from the Rescuecom site. Rescuecom sued Google for trademark infringement and for violating the Lanham Act by false designation of origin. The district court dismissed the suit; Rescuecom appealed.

Decision

Reversed and remanded. Google’s practice of recommending and selling to advertisers the keyword “rescuecom” was a “use in commerce” within the meaning of the Lanham Act. The practice could cause confusion by consumers as to the true origin of a site. Hence, Rescuecom has a cause of action for trademark infringement that may proceed.

Citation Rescuecom Corp. v. Google, Inc., ---F.3d--- (2009 WL 875447, 2nd Cir., 2009)

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