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Software firm goes after Google for internet invisibility cloak

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A software company has sued Google not only for trade mark infringement in Google's AdWords advertising system but for making its website invisible to the Google search engine.

Google has faced a string of law suits claiming that it breaks trade mark law when it allows third parties to buy the right for their ads to appear when another company's trade mark is typed into the search engine.

Ascentive has gone one step further, though, and has claimed that Google broke the law in the US when, after a dispute, it took Ascentive's website off the index used by its search engine, effectively making the site invisible to the world's biggest search engine.

Ascentive sells software that it says cleans computers of spyware and allows remote viewing of the use of a computer to allow parents to monitor children's access. Anti-malware non-profit Stopbadware.org, though, said that an earlier version of the software could harm computers.

Ascentive changed its software because of Stopbadware's concerns, but it said that the Stopbadware warnings may have been the reason that Google suspended not only Ascentive's advertising account but also its presence in Google's natural search results.

A Google response to Ascentive said that the action was because of "multiple policy disapprovals", according to court documents.

Ascentive made clear in its lawsuit, filed at the US District Court for the Eastern District of Pennsylvania, that its business depends on the internet, and to a large extent on Google. "In 2008 Ascentive derived approximately 99 per cent of its revenues from online sales from its websites," it said. "Google's willingness to display links to Ascentive's websites in its natural search listings is…crucial to internet users' ability to locate Ascentive's websites."

Ascentive argues in its suit that by not including it in its natural search listings, Google is interfering with "prospective contractual relations".

"Prospective customers searching for [Ascentive brand] 'Finallyfast', which Google estimate number about 110,000 internet users a month, previously saw displayed a link to Ascentive's www.finallyfast.com website," it said.

"As a result of Google's actions, these customers now see displayed only the advertisements and websites of third parties, including competitors of Ascentive that continue to make unauthorized use of Ascentive's trademarks," said the suit. It said that Google "intended to harm" Ascentive.

The law suit also makes claims against Google's keywords advertising system. Google's AdWords displays adverts according to the payment made by advertisers to have their promotions appear when certain keywords are put into the search engine.

There have been disputes about whether one company paying to have its ads displayed when another company's trade mark is searched for represents trade mark infringement.

Google's policy in the US and the UK allows the use of other people's trade marks as a trigger for an ad but does not allow the use of that term in the ad itself.

Google refined that policy recently in the US only, where it said that a business could use someone else's trade mark in the ad without that company's permission if it sold the goods referred to.

In 2006 A New York court threw out a case arguing that the use of a trade mark as a trigger was trade mark infringement. A previous case had been settled out of court.

Copyright © 2009, OUT-LAW.com

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

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