Rescuecom v. Google
- F.3d --, 2009 WL 875447
Facts: The District court said that Google’s use of the term “rescuecom†as a search term was an internal use and not a “use in commerce†under the Lanham act. Because of this summary judgment was ordered. Now comes an appeal by the Plaintiff.
Issue: Whether using a trademarked name as a search term for advertising use is a trademark infringement under the Lanham Act.
Rule: The Lanham Act prevents certain types of Trademark Infringement. In the present case, Rescuecom is a trademarked name and using it in commerce is a violation of the act.
Analysis:
Rescue.com alleges that consumers might be misled by “sponsored links†and believe they are part of Google’s “normal†relevance-based search results. These sponsored links are listed above the search results, which could conceivably confuse a user by thinking the sponsored links were actually the most relevant search results. Google recommended “rescuecom†to rescuecom’s competitors so that their ads would show up. The District court felt that this case was similar to 1-800 and should follow that ruling. Appellate Court disagrees. In 1-800, software was used that displayed a popup ad for the search term. There was no confusion by the user because they knew it was a pop up advertisement, not a link to the trademarked site. Also in 1-800, Defendant did not make use of the Plaintiff’s trademark, where now Google is selling Rescuecom’s trademark.
Google’s argument that the inclusion of a trademark in an internal computer directory cannot constitute a trademark use, but the Court Holds that this argument would open a floodgate for search engines to deceive consumers. Also, Google’s “product placement†defense doesn’t work because when someone buys a generic product, they know what they are getting and were not “misled.†A defendant must “do more than use another’s mark in commerce†to violate the Lanham act. Instead one must cause confusion or deceive the origin of the goods. Court concludes that district court made a mistake by comparing the case to 1-800 and dismissing the action. Case is remanded back to district court
Facts: The District court said that Google’s use of the term “rescuecom†as a search term was an internal use and not a “use in commerce†under the Lanham act. Because of this summary judgment was ordered. Now comes an appeal by the Plaintiff.
Issue: Whether using a trademarked name as a search term for advertising use is a trademark infringement under the Lanham Act.
Rule: The Lanham Act prevents certain types of Trademark Infringement. In the present case, Rescuecom is a trademarked name and using it in commerce is a violation of the act.
Analysis:
Rescue.com alleges that consumers might be misled by “sponsored links†and believe they are part of Google’s “normal†relevance-based search results. These sponsored links are listed above the search results, which could conceivably confuse a user by thinking the sponsored links were actually the most relevant search results. Google recommended “rescuecom†to rescuecom’s competitors so that their ads would show up. The District court felt that this case was similar to 1-800 and should follow that ruling. Appellate Court disagrees. In 1-800, software was used that displayed a popup ad for the search term. There was no confusion by the user because they knew it was a pop up advertisement, not a link to the trademarked site. Also in 1-800, Defendant did not make use of the Plaintiff’s trademark, where now Google is selling Rescuecom’s trademark.
Google’s argument that the inclusion of a trademark in an internal computer directory cannot constitute a trademark use, but the Court Holds that this argument would open a floodgate for search engines to deceive consumers. Also, Google’s “product placement†defense doesn’t work because when someone buys a generic product, they know what they are getting and were not “misled.†A defendant must “do more than use another’s mark in commerce†to violate the Lanham act. Instead one must cause confusion or deceive the origin of the goods. Court concludes that district court made a mistake by comparing the case to 1-800 and dismissing the action. Case is remanded back to district court