Speaking of my post from yesterday, below — wow. Survey: Users Confuse Search Results, Ads. Hard to see how this doesn’t have some effect on any settlement discussions in the Google / Geico case.
Of course, this survey has not met, and presumably would not meet. the Daubert standard for admissibility in federal court. But it does require me to change my post below to read, “whether a search engine is or is not causing likelihood of confusion under the Lanham Act by delivering results utilizing key word searches that happen to be someone’s trademark is essentially a metaphysical one — which is to say that judges are making policy decisions, which Congress is supposed to do.”
Yes. And the reason I believe it remains a question, or should be, is because I am dubious in the extreme — as everyone who has ever met me knows — about the cooked-up concept of “initial interest confusion.” (I wrote about my discontent here.) This doctrine, never contemplated by Congress, is what is driving all these cases. If somebody doesn’t address this full-on (and the Seventh Circuit has already someone let me down — see the article), it won’t be the end of the world. But it will be world we never voted to create.
UPDATE: Via Marty Schwimmer, here’s a transcript of the proceedings in the Geico case in which the court and counsel address the topic of designing the appropriate survey.
UPDATE: Crack IP attorney David Nieporent from my office took a close look and confirms that far from meeting the Daubert standard, this survey wouldn’t even meet the Dilbert standard. Not only was it a phone survey, but it essentially consisted of asking the subjects whether they knew what “sponsored results” and other terms meant — terms that most people who are not involved in Internet marketing or IP wouldn’t know. That’s a long way, however, from saying they would be confused if actually presented with these different results on the screen.