Originally posted 2010-10-12 18:56:06. Republished by Blog Post Promoter
Looking for the Geico v. Google decision? Here it is.
More to come….
UPDATE: I didn’t exactly mean more litigation — but I guess we shouldn’t be surprised.
UPDATE: I think of Professor Eric Goldman as the person in academia whose professional interests track mine most closely, among the statistically insignificant number of such possible persons I’ve heard of. Anyway, he’s right on here, too — I don’t know what to make of this opinion. Here’s his take, which he shared both on his blog and, in brief form, on the INTA list (link is mine, however):
The opinion does very little to clarify or add to the court’s oral ruling from December. So we really don’t learn much from this opinion, and as a result, I can’t see why this opinion will affect the parties’ settlement negotiations. …
[T]he court does some arm-waving. It appears to endorse GEICO’s position (from Brookfield and other cases) that an “initial interest confusion” case moots the need to use the standard likelihood of confusion multi-factor test[, and the court] summarizes by saying: “To prove likelihood or absence of confusion, initial or otherwise, parties commonly introduce the results of customer or potential customer surveys.”
It’s true that surveys are a standard method of proving likelihood of consumer confusion, and I’m glad the court required some empirical proof rather than mere intuition-driven arguments that pervade most initial interest confusion cases. However, what legal standard is the court using? If it is bypassing the multi-factor likelihood of confusion test, what test is it using? The court doesn’t say.
One other odd thing about this statement. What’s this about proving the absence of confusion? The burden is on the plaintiff, not the defense. Why would anyone need to prove the absence of confusion?
. . .
The court … continues, “Despite the many flaws in its design, the survey’s results were 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.”
This is a non-sequitur. There’s nothing in the court’s opinion or the discussion of the survey that supports this finding. Unfortunately, the court does nothing to explain its thinking about this conclusion or how the survey supports it. The only thing that the court notes is “the extremely high percentages of respondents who experienced some degree of confusion when viewing [ads displaying GEICO in the text].” Further, Google did not introduce any rebutting evidence on that point.
As a result, the court rules for GEICO that “Google may be liable for trademark infringement for the time period before it began blocking such usage or for such ads that have slipped or continue to slip through Google’s system for blocking the appearance of GEICO’s mark in Sponsored Links.”
Not all that encouraging. That’s the mess judges are making of this area of law — and it’s not as if this one didn’t take her sweet, sweet time getting to this point…
UPDATE: This post, of course, is literally old news now (2010). The case did settle, but the issues of liability for keyword advertising — both secondary liability and the old-fashioned right-through-the-front-door kind — are still in play.