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04.20.07
Google Wields Precedent In Trademark Case
 By
David A. Utter
Google has beaten a couple of challenges to AdWords over competitor usage of trademarks as keywords, but they now have a third lawsuit coming to them from American Blind & Wallpaper Factory.
Google, AOL, Earthlink, and Ask are all on the receiving end of American Blind & Wallpaper Factory's lawsuit over trademark infringement. ABWF contended the use of its trademarks as keywords to trigger competitor advertising violated those marks.
Hopes for shutting the lawsuit off before it could pick up steam were dashed when US District Court Judge Jeremy Fogel denied part of Google's motion for summary judgment in the case.
A couple of claims made by ABWF regarding the marks "American Blinds" and "American Blind" have been set aside by Fogel.
Google settled one suit with insurance firm Geico, while winning out against an action by computer repair firm Rescuecom.
The latter company is still appealing its case.
AdWords does not allow competitors to display trademarks they do not own in contextual ads.
They do allow competitors to purchase those marks as keywords to trigger ads that do not violate Google's terms of service.
Reuters cited part of Fogel's opinion on AdWords and its impact on law:
"The large number of businesses and users affected by Google's AdWords program indicates that a significant public interest exists in determining whether the AdWords program violates trademark law," Fogel wrote in his decision.
AOL and Earthlink ended up in this suit as ABWF countersued Google over the use of trademarks. Holland+Knight said in 2004 Google sued ABWF first in California, asking for declaratory judgment on the matter in late 2003.
ABWF countersued Google and brought the other defendants into the case; the company may have been afraid of facing Google in California, as they chose to countersue in New York instead. AOL had recently settled a lawsuit with Playboy over Netscape's use of certain terms like 'playmate' to trigger ads, only to have the ABWF action quickly follow that.
ABWF does $103 million in annual sales according to their Hoovers' profile; the company changed CEOs in May 2006.
The rest of their lawsuit against Google will proceed; Danny Sullivan has posted the 21-page decision by Fogel on his Search Engine Land site.
About the Author:
David Utter is a staff writer for WebProNews covering technology and business.
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