It’s two posts in one (I like to pull that off when I can), not even counting this one: Mike Masnick on Eric Goldman on the settlement of the Google / Rosetta Stone case that gets everyone so agitated alla time:
Perhaps the most well known [adwords lawsuit against Google] was the one that Rosetta Stone filed back in 2009 (the ninth such case). That case has been kicking around for years, with various ups and downs. Rosetta Stone even went so far as to supportSOPA’s predecessor, COICA, in the hopes that it would be useful in making Google liable for the ads others placed on its site. We had thought that a clear headed judge would point out the obvious, but instead, we got a massively confused ruling that was quite troubling in which it was unclear if the judge really understood the issues at play. Given all of this, it’s not a huge surprise that Google figured out a way to settle the case out of court. While it probably had to pay a small sum to make that happen, Eric Goldman notes, nothing in what’s been announced suggests that Google agreed to change any of its practices. He also notes that, at this point, nearly every such case against Google has ended in a Google win or quiet settlement in which Google’s policies are left intact:
Irrespective of the specific settlement terms, ending this case is a strategic win for Google because it takes out the last “major” US trademark owner challenger to AdWords. Combined with the recent dismissal of the Jurin lawsuit, Google is now down to two pending US trademark lawsuits over AdWords: CYBERsitter and Home Decor Center. Despite CYBERsitter’s recent intermediate “win,” I don’t think either of the two remaining lawsuits are dangerous to Google. As a result, Google is tantalizingly close to successfully running the table on all of the US trademark challenges to its AdWords practices. When this happens, Google will have legitimized the billions of dollars of revenues it makes by selling trademarked [sic] keywords in AdWords.
Eric may be slightly more optimistic on this than I am. Having seen so many of these cases come and go, I still expect others to jump in, in the hopes of getting offered a similar “settlement” just to go away. Hopefully one of the remaining cases ends in a clear judicial smackdown against companies who are trying to stretch trademark law well beyond its intended purpose.
Hard to disagree with Mike here. There’s always going to be a litigator who, when pressed by his client to solve the dread menace (or is it a threat?) of “diversion” via Google AdWords — i.e., competition, typically, via what is essentially comparative advertising — will reluctantly agree to open up a litigation file and accept a hefty retainer to show how can-do he is when it comes to that meeting-all-your-legal-needs thing. Whether it’s a purported new legal theory, or the prospect of at least getting what Rosetta Stone got, or just the illusion of motion, dynamism or whatever, these cases will be filed.
Running the table, in fact, doesn’t really count unless and until you get that decision that (1) resolves the legal issue and (2) is portable across jurisdictions. Absent that, there’s no single “table”: there’s always someone ready to chalk up the cue and set up a new rack of balls, even if it’s in another hall. And knowing that Google doesn’t really want to face the risk of an adverse decision, notwithstanding that on the merits it probably ought to win most of the issues in play, provides all the chalk, and all the balls, my esteemed colleagues in the IP “enforcement” bar need.