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Is it me, or does the deck seem increasingly stacked against companies trying to nail Google for trademark infringement?
Last Friday, Google quietly put to rest a four-year-old trademark infringement case triggered by ABWF (American Blind and Wallpaper Factory).
The cost? Purely legal, according to the settlement statement. Google must abide by its current trademark policy and ABWF won’t sue so long as it does. Google was a tad smug about the deal.
“We are very pleased with this outcome and to note that Google has not paid and will not be paying any settlement fee, our trademark policies remain unchanged, and we’ve made no special exceptions for American Blind,” a Google spokesperson wrote to me.
The case revolved around Google’s AdWords program, where advertisers can bid on keywords in order to receive a high ranking on paid search results. ABWF claimed Google infringed on its trademarks by allowing its competitors to bid on keywords that are similar to its trademarks.
ABWF sued Google because it didn’t like that when users did a Google Web search for the factory, links to the home decor company’s rivals would pop up, too, offering alternatives.
Google likes to support its keywords with lots of relevant, related links because when users click on them the search giant makes money. The more links, the merrier. And Google has no intention of abandoning one of its major, money-making practices with a whimper.
Still, challengers persist. While ABWF has abandoned its suit against Googlezilla, GEICO and American Airlines are intent on fighting Google on this practice, arguing that Google shouldn’t be allowed to make money off of their businesses names — at least not unless the businesses get a cut in the action.
Eric Goldman, an assistant professor at Santa Clara University’s School of Law, pounced on the news in a blog post August 31, noting that ABWF actually took a huge hit in this deal.
Not only did the company pay a lot in legal fees, it had two of its patents declared unenforceable and wrote Google a check for botching the discovery process.
“I think American Blinds’ complete capitulation is the latest reminder to plaintiffs that it’s often irrational to bring lawsuits over keywords,” Goldman wrote. “This case reiterates that keyword-related lawsuits can be a sucker’s bet.”
So now, it seems, ABWF turns its lonely eyes to American Airlines, as ABWF CEO Joel Levine told The Recorder that his company pulled out for financial reasons and because American Airlines had embarked on a similar suit.
I wrote last month about the odds American Airlines faces, and even guessed that perhaps Google might make some changes to its policies because of all the niggling suits.
But with this latest development, I have more doubts about companies’ ability to sustain such suits. American Airlines may be King Kong to Googlezilla, but I don’t see the outcome turning out much different.
These cases aren’t making it past pretrial and even if American does successfully get Google in court, judges may look at the past efforts and put more weight with them than on American’s size or potentially sophisticated litigation team.
At the end of the day, American is trying to make the same argument as ABWF.