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Goldman, who obtained and posted a copy of the the subpoena (PDF), believes that the case could be a watershed, paving the way for particularly-cunning businesses to weasel information about their competitors from Google and other search sites. "Today, a trademark owner has to bid for their own trademark on Google, and they never quite know what they're bidding against," he says. "But this could give them great insight into how to bid optimally on their trademark." All they have to do, says Goldman, is file a suit and issue a subpoena.
According to Edward J. Naughton, a partner with the international law firm of Holland and Knight who specializes in intellectual property, it is unusual for a company like Google receive a subpoena in a case like this. Typically, he says, a court will ensure that the plaintiff only collect keyword data from the defendant itself, ensuring that other parties are left alone.
Several lawyers we talked to also said they wouldn't be surprised if Google complies with the injunction. "Companies like Google are getting less litigious on these types of issues," says Doug Wolf, co-chair of the trademark group at the Boston-based firm Wolf, Greenfield, and Sacks. "When it's only third-party information involved and there's no clear benefit to them in trying to suppress a subpoena, they'll comply with it."
But both Naughton and Wolf question whether others could use this sort of court action simply to collect data about competitors. "I suppose there's a risk here to businesses, but I think it's pretty small," says Naughton. "It's hard to say that this is going to open the floodgates. In the average case, the court is going to understand the information is competitively sensitive." In the event of a subpoena, the court could also issue a "protective order," which would only allow a company's lawyers to see the subpoenaed information - not the company itself.
Gregory Rutchik, founder of the arts and technology law group, a California-based infringement litigation firm, agrees. "First of all, litigation is incredibly expensive," he says. "But even if a business were willing to spend the thousands of dollars needed to get this sort of information, there's a risk - to the lawyers and to the business - that they'll be sued in return." ®