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'Lawful' policy, search engine claims

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The company behind US cash-advance firm Check 'n Go has sued Google for selling its trademarks as keywords in search advertising, according to the Cincinnati Enquirer. Such sales do not breach Google's own policy for the US and Canada.

The dispute has been brought by parent company CNG Financial Corp over Google's AdWords service. The service allows advertisers to sponsor particular search terms so that, whenever that search term is entered, the ad will appear next to users' search results under a list of 'sponsored links'. When the ad is clicked, the sponsor is charged.

Google allows trademark holders to request that their trademarks do not appear in the headings or text of sponsored links. But the search engine will sell trademarks as keywords to rivals of the trademark holder. This was justified by a previous court ruling on the grounds that it does not cause confusion among users.

Google has a different policy outside the US and Canada, where trademark holders can object to their marks being sponsored by others. This policy is consistent with French court rulings against Google over its sale of certain trademarks as keywords.

The Cincinnati Enquirer reports that Check ‘n Go’s suit is based on Google's sale of particular keywords, rather than the text of the ads triggered by those keywords. The Cincinnati District Court has been asked to grant an injunction to prevent the search giant from selling ads related to the trademark. The suit also seeks damages.

In response, Google spokesman Jon Murchinson, told the Enquirer: "Our policy is lawful, and we're willing to address it in court if need be."

It appears that the latest case will challenge the reasoning of Judge Leonie Brinkema of the Eastern District of Virginia, who was asked to rule on Google's sale of the keyword "GEICO". The car insurance firm of that name was told that there was no evidence that the use of its trademark as a sponsored search term caused confusion.

Judge Brinkema did acknowledge that GEICO had produced survey evidence "sufficient to establish a likelihood of confusion regarding those Sponsored Links in which the trademark GEICO appears either in the heading or text of the ad".

Accordingly, she allowed the case to continue over the question of whether the use of the trademarked terms in the text of sponsored ads breached GEICO's rights – albeit the case settled before this issue could be argued in court.

Lee Curtis, a Trademark Attorney at Pinsent Masons, the law firm behind OUT-LAW.COM, said the case will not only be of interest to trademark owners and advertisers in the US, but across the globe. "In the UK, although case law on keyword disputes is fairly limited, what cases there have been have tended to follow the reasoning of Judge Brinkema in the GEICO decision," he said.

Curtis pointed to an English Court of Appeals ruling in 2004 in a dispute over the keyword "Reed". This was not a Google AdWords dispute; rather, Reed Executive was suing Reed Business Information and others over the promotion of a venture called totaljobs.com. The word "Reed" was used to trigger ads for totaljobs.com in Yahoo!'s search engine, but the court ruled that there was no confusion.

See: the Enquirer report.

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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