Experts Point to Editorial
Judgment"> According to search engine experts, American Blind will find it more difficult to prove infringement by Google in its regular search listings. Those listings are, in a sense, based on Googles editorial judgment embodied in its algorithms and technology, something one might argue is covered by First Amendment protections, said Danny Sullivan, editor of search industry site SearchEngineWatch.com. "I dont think a search engine has ever been targeted for unpaid results like this," Sullivan said. "If American Blind doesnt like what is appeared in Googles editorial columns, then Google might have to right to say, Too bad."Also, American Blinds sites do appear in Googles general Web search results when its trademarked terms and descriptive terms are entered and are listed near the top, Sullivan pointed out.Google has faced lawsuits before that challenge its rankings of Web sites and has prevailed. Internet advertising company Search King Inc., of Oklahoma City, sued Google in 2002 after sites in its ad network were penalized by Google for the way they linked to one another. Search King wanted its previous ranking restored but lost the case. When it comes to search advertising, though, the American Blind lawsuit could have more far-reaching impacts. It serves as a test case in deciphering the limits of when and where descriptive terms can be used in keyword-based search ads, said John C. Baum, a partner at law firm Townsend and Townsend and Crew LLP, in San Francisco. "This is defining one of the edges," Baum said. "Google and American Blind are going to help us to define for the Internet context what is a fair use of a descriptive term as an information finding device. It affects a large part of a very successful portion of the Internet business world." Google has faced a series of trademark infringement lawsuits in France, most notably one filed in August by Louis Vuitton SA. These lawsuits have focused more on the use of specific trademarks in keyword advertising rather than descriptive terms. In a seperate case, Playboy and Netscape settled a dispute regarding keyword-triggered ads. Click here to read more about that case. Google has tried to avoid conflict with trademark holders, often barring competitors from bidding on keywords that match unique trademarks, as it has done for companies such as eBay Inc. and Dell Inc., Sullivan said. But conflict has become almost inevitable with descriptive terms, especially as search companies such as Google earn growing profits from search-based advertising. The online search industry is growing at an annual rate of about 35 percent and is projected to reach $7 billion in revenues by 2007, according to a report by Piper Jaffray & Co. Paid listings account for a significant part of that growth. Meanwhile, as the courts continue to work out the trademark boundaries, search advertisers also need to consider their liability and ensure that they are not infringing on a trademark. "Anytime you bid on a word and understand that its a trademark you better feel confident that if you go to court you can defend the reasons for doing that," Sullivan said.