Tag Archives: Google

LIKELIHOOD OF CONFUSION® in 2006: “Is Google a utility?”

Originally posted 2009-08-12 23:59:27. Republished by Blog Post Promoter

I posted this in August, 2006. I don’t think the question has been answered yet:


We wrote about the Kinderstart lawsuit against Google, claiming an unfairly depressed Google search rank, last March. There have been further, very interesting, developments, exemplified by this this colloquy reported by Dawn Kawamoto:

David Kramer, a Wilson Sonsini attorney also representing Google, said the search giant’s PageRank system is subjective, using a combination of reviews into whether a Web site is adhering to its guidelines and is worth a user’s time to view.

“Google is constantly evaluating Web sites for standards and quality, which is entirely subjective,” Kramer said.

The judge probed Kramer on the topic of whether Google engages in misleading behavior, and whether it uses objective criteria to evaluate sites–rather than solely relying on subjective reasoning.

“What if, say, Google says it uses facts one through 10 to evaluate a site, but actually uses number 11 to decide its rank. Isn’t that misleading?” the judge asked.

Kramer, however, said Google readers understand that the site’s ranking system is subjective and based on Google’s opinion about whether a site is worth viewing.

A repeated theme in the article is that Google keeps urging that it has “no obligation” to “promote its rivals.” Which it certainly doesn’t seem as if it does. On the other hand, once a company becomes a sort of common carrier — I am pushing this here — is there really no point at which all purchasers of its services should be treated equally? (Very un-free-markety of me to suggest this, but I’m the conservative blogger who’s not a libertarian.) Avoiding a ruling that in any way characterizes Google search results as commodities is also evidently on the mind of the Google attorney who’s insisting, despite the obvious risk of doing so, that Google results, in some cases, are subjective, not objective.

And what is that risk? Read More…

The Google Library Project and the dog that didn’t bark — yet

Originally posted 2012-10-22 09:45:24. Republished by Blog Post Promoter

Utah IP lawyer

Nicholas Wells, Wells IP Law

This post is the first by a new guest contributor, Utah IP lawyer Nicholas Wells, who also blogs on IP here.  I first blogged about the tiff between Google and “the writers” and the “the publishers” over the Google Books Library Project a long time ago, most recently in March of 2011.  It’s not really all over, actually, and Nicholas has generously offered to explain it all here.  Thank you, Nicholas!

It would have been fascinating to read the court opinion ending the lawsuit by a group of major publishers against Google.  But we won’t get to do that.  After seven years, the parties settled this month on undisclosed terms.  The Google Library Project can continue to scan and make available books by the affected publishers.  The publishers can choose to “opt-out” for any books they don’t want included, but for all that remain in the Project, Google can let users browse up to 20% of the contents.  Those books will also be available for purchase through Google.

Both the publishers and Google called the settlement “pragmatic” and said that the settlement “reaffirms the rights of copyright holders.”


A separate class action suit led by the Author’s Guild is unaffected by this settlement.  That class action suit remains the more interesting part of this story.   (Indeed, James Grimmelmann, a professor of law at New York Law School, told the Chronicle of Higher Education that the settlement with the publishers was “one of the least-dramatic settlements I’ve ever seen.”)  Still, Publisher’s Weekly called Google’s settlement with publishers a “huge win” as far as orphaned works—those books where the copyright holder can’t be identified and so Google can’t ask anyone’s permission.  The “win” is for Google, not the authors of the orphaned works, because there is no one to “opt out” of the Google Library Project as to those works.  They will remain part of the project and will be made available to the public—with proceeds from ad revenue and book sales going to Google, at least for the time being.

Still, that begs the question that everyone was asking when Google started the Google Library Project back in 2005:  Can Google re-interpret copyright law by doing whatever they choose and then letting the courts or the affected parties fight about it after the fact?  The obvious legal answer at the time was a resounding “No.” Read More…

Chocolate Ice Cream with Chocolate Syrup

Originally posted 2005-05-23 09:37:00. Republished by Blog Post Promoter

How else to describe a post (this one) that combines two of our favorite obsessions — Google and fair use?

Business Week online reports that Google’s announced plan to to scan millions of the world’s books and make them searchable online is, not surprisingly, a little scary to some people. No, not the people who are afraid of free access to books and information. Rather, the people who are “all about” that very thing — but who are a little worried about “free” in the economic, not the freedom, sense of the word.

According to Business Week, “In a May 20 letter, the Association of American University Presses (AAUP) blasts Google’s so-called Print for Libraries program for posing a risk of “systematic infringement of copyright on a massive scale.” Evidently, according to the report, a number of publishers have also expressed some concern. “We don’t see how a for-profit company compiling this would be considered fair use,” a spokesman for the Association of American Publishers — the principal trade organization of the book publishing industry — told Business Week.

Well. But it would depend in no small part on how much of a work is being made available on line (as the article notes), as well as on the development of third-party liability for hacking that leads to unauthorized access of infringing material beyond what Google anticipates making searchable, or accessible from search results.

It’s getting to the point where we’re taking the Googlization of the known world for granted. We shouldn’t. It’s an incredible phenomenon.

Google, Geico Good to Go

Originally posted 2005-09-08 01:30:05. Republished by Blog Post Promoter

Google and Geico have settled.

The slide to genericide

Originally posted 2006-07-24 23:38:26. Republished by Blog Post Promoter

Evan Brown writes about everyone’s favorite candidate for the dustbin of trademark history — Google.

It’s obvious to me that Google has made a conscious decision not to police the use of its trademark as a verb, because as far as I know it never does. The reason is not obvious to me, however, since Google does indeed police other trademark infringements, including dubious ones. But I am very reluctant to second guess Google, which has been very, very good to LIKELIHOOD OF CONFUSION.

Search for resolution

Originally posted 2012-11-07 16:48:57. Republished by Blog Post Promoter

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. Metzenbaum Federal Courthouse, Cleveland, OhioWhile 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.   Read More…

Google and the Privacy Obsession

Originally posted 2005-06-03 00:00:00. Republished by Blog Post Promoter

Google is the new horseman of the ever-approaching privacy apocalpyse, according to an article in Reuters. Why? Because Google lets you keep your mail (on its Gmail service) “forever,” though the article doesn’t explain what exactly the privacy risk is there. And, being fundamentally in the business of aggregating, analyzing and mining data, it keeps search, IP and other logging data for a long time, too. What’s the problem with that?

Lauren Weinstein, of People for Internet Responsibility — an organization whose slick, professional website suggests it has not done or even said all that much lately (though Weinstein’s blog look somewhat active) — tells Reuters, “There’s really no good reason to hold onto that information for more than a few months. . . . [Google] seem[s] to think that because their motives are pure that everything is OK and they can operate on a trust basis. History tells us that is not the case.”


Google doesn’t have to justify its motives — which it never claimed were pure; see their stock price, thank you — and you don’t have to trust Google at all. Just don’t use it.

How long until some representative demagogues this one on Capital Hill?

Google a utility? Not the way we thought

Exhaust system, Port Authority Parking GarageI asked the following question more than a little while back in connection with the Kinderstart lawsuit against Google, which asserted a supposed right to a certain “objective” Google ranking (I’ve made slight non-substantive touchups):

Is Google a Utility?

[O]nce a company becomes a sort of common carrier — I am pushing this here — is there really no point at which all purchasers of its services should be treated equally? …  Avoiding a ruling that in any way characterizes Google search results as commodities is also evidently on the mind of the Google attorney who’s insisting, despite the obvious risk of doing so, that Google results, in some cases, are subjective, not objective.

And what is that risk? A ruling, or a suggestion (I don’t know enough about the case to know if this is a claim) that, far from a commodity like potatoes, electric power or fake Vuitton bags, Google results are commodities’ evil twin, a service so unique to Google, and so very, very central to the “market” (definition of which is the heart and sould of the matter) that Google has a — dare we say it? A monopoly! For let’s not kid ourselves: If it were 1966, not 2006, this search advertising business — with both Google and Yahoo at the table — would already be negotiating a consent decree with the government, and not the kind Google is looking for. . . .

But we digress. Add this to the story from last week involving an advertiser’s complaint that Yahoo! buying search terms on Google to redirect users searching for a third website that competes with Yahoo!, and what do you have? New dimensions, or at least invitations by lawyers to open new ones, in unfair competition, antitrust, tortious interference and other traditional areas of law.

Will judges build on the existing doctrines of law and merely apply them to new industries and new technologies? Or will they do as they have done in trademark, and invent new bases for recovery to “fix up” perceived injustices that those pokey legislatures haven’t gotten to? We’ll keep watching.

Turns out there was nothing to watch; no there there — it was a dumb idea, it was recognized as dumb early on, and Google, so far, is not a utility.

Except that Google is a utility, after all!  Not quite the way I meant when I raised the issue in 2006, however, according to the website Quartz:

You probably won’t be receiving a utility bill from Google anytime soon, but the search giant is slowly but surely morphing into a literal power broker. Yesterday (Sept. 17), for instance, Google announced that it would buy all the electricity generated by the 240-megawatt Happy Hereford wind farm to be built near Amarillo, Texas.

Google’s main goal is to make itself greener. Google Energy, the company’s power subsidiary, which has a US government license to buy and sell energy like any utility, will sell the electricity from Happy Hereford into the wholesale market in Oklahoma where one of Google’s massive data centers is located. The data center can’t take the power directly from Happy Hereford; it buys electricity from its local utility, which may buy it from the wholesale market. But by selling green power to the grid, Google gets to deduct emissions from its carbon footprint as if it had used the renewable energy itself. . . .

If Google Energy starts to become a major buyer in a market, the utilities might have to start offering power producers higher prices in order to compete with it.

That assumes, of course, that Google Energy will keep paying a premium for green energy as it has in the past. Google spokeswoman Kate Hurowitz told Quartz the company would not disclose the financial terms of the Happy Hereford deal. She said in an e-mail that the power purchase agreements are a “a means to an end” of promoting renewable energy and powering the company’s operations with carbon-free electricity. Google, she noted, has no designs on becoming a quasi-utility.

Google says it has no designs on becoming a “quasi-utility,” yet the article is entitled, “Google is on the way to quietly becoming an electric utility.”  On the other hand, the reporter, Todd Woody, believes takes Google at its word when it says, “Google’s main goal is to make itself greener.”

Well, okay, actually that probably is credible.  But not in the sense of “make itself greener” that Todd necessarily meant it.  Google, of course, has always been interested in the green, and that’s why it does everything it does.  And Google has a tremendous energy consumption footprint, as anyone with the slightest familiarity with the power needs of even pedestrian data centers will readily understand.  It is rational for it to seek predictability in terms of supply and cost, and would be quite irrational for it not to do so.  Evidently it’s doing a pretty good job.

If even a subsidiary part of that policy is to enhance sustainability and perhaps — through its own market-driven goals — to find ways to generate power better, faster and cleaner, what’s not to like?  In this respect, Google is certainly not acting like a utility, in the economic sense.  Which is a very good thing.

Google Takes Offense, Takes Offensive (for a change)

Originally posted 2005-04-18 17:43:00. Republished by Blog Post Promoter

According to Search Engine Journal, perennial trademark infringement defendant Google has filed suit against Froogles.com, an online shopping site. The New York federal complaint is here. Google has already lost against Froogles at the ICANN level, the site reports. Don’t confuse with Froogles.com with Froogle.com, which is a Google site. Does that figure into the claim now? Take a look and let me know!

UPDATE:  After more than two years of pretrial stuff, according to PACER the case was settled on undisclosed terms.  Either way, Froogles.com is still in business and Richard Wolfe remains its “sole proprietor.”

Google externalities, Google rents

Originally posted 2007-07-02 12:21:22. Republished by Blog Post Promoter

The Washington Post reports about a consultant who can clean up your Google problems.

Oh, brave new world, that has such people in it!  Hat tip to TechMeme.

I imagine there are quite a few business owners, including trademark holders, who would be interested in this service.  But if you’re thinking what I’m thinking, so are the experts:

Still, Google is continually refining its search methods, which means that today’s fix may not work tomorrow.

“This is a game that nobody can completely win,” said Chris Dellarocas, a University of Maryland information systems professor.

New world, indeed.

Moral high clown

Originally posted 2007-02-14 12:31:04. Republished by Blog Post Promoter

Instapundit.com asks,

IS YOUTUBE LOSING ITS SHEEN? “Some observers hoped when the subpoenas came to light that Google’s history of resisting US government subpoenas would lead to non-cooperation in this case. The moral high ground is clearly far smaller in this case, though.” Yes, this isn’t about national security, it’s about power for the entertainment industry. No moral high ground in resisting that.

Hm, what’s with the snark, exactly? What happened here? The link above is to Tech Crunch, which explains:

Three weeks after receiving a subpoena from the U.S. District Court in Northern California, YouTube has reportedly identified a user accused by 20th Century Fox Television of uploading episodes of the show 24 a week prior to their running on television. That user, named ECOTtotal, is also alleged to have uploaded 12 episodes of The Simpsons, some quite old. Apparently Google and YouTube were willing and able to identify the owner of the username ECOTtotal, acording to a report on InternetNews.com.Some observers hoped when the subpoenas came to light that Google’s history of resisting US government subpoenas would lead to non-cooperation in this case. The moral high ground is clearly far smaller in this case, though. YouTube has handed over user names before upon request prior to its acquisition.

I don’t think I understand Glenn’s “moral high ground” point at all. This is stealing. Read More…

Best of 2012: INTA and the big tent

First posted on May 13, 2012.In the previous INTA post I raised the question of how a significant session discussing a significant topic — the effect of developments in keyword advertising cases on trademark rights on May 9th, the first day of the 2012 Annual Meeting — could have been so seriously skewed.  I promised, as they say in Washington (but not the way they mean it when they say it), to extend and  clarify my remarks.

I linked to this item from Managing Intellectual Property, the really interesting part of which will be discussed in another post.  We’ll start there, however:

More than 1,400 attendees crowded into a session on keyword advertising yesterday, where Rosetta Stone counsel John Ramsey and other panelists shared their frustrations about the issue and also faced tough questions about the proper legal approach.

Ramsey could not discuss specifics of the company’s closely watched case with Google over trademarks as keywords in sponsored ads, but he explained to attendees the aggravation the brand has experienced over search results incorporating the ROSETTA STONE trademark that managed to appear above links to the company’s authentic site.

Ramsey has every right to be aggravated:  Rosetta Stone has a serious counterfeiting problem; the real actors are essentially untouchable; and it sure as heck seems as if Google is making money off it by taking the pirates’ money for display advertising.

Trademark lawyer Ron ColemanI am not unsympathetic to the concept that intermediaries — at some level — should be held to account for their actions; as regular readers know to death by now, I have long advocated that secondary liability attach to eBay for its comparable role in this process, and remain at odds with many, including the Second Circuit, on this topic.  I was also involved in early efforts, not all of which I can disclose, to get at what seems to be willful blindness by at least some credit-card issuers — an effort regarding which, of course, some small results have finally been achieved by others.

On the other hand, as an outgrowth of my work defending entrepreneurs against fallacious trademark claims based on “unauthorized distribution” of branded merchandise as well as my First Amendment work involving bloggers, I have had the opportunity to see the Lanham Act misused a slightly different way:  As a would-be workaround of the safe harbor provision of Section 230 of the CDA.  That is, they are state-law defamation claim dressed up as federal trademark infringement suits.

Now, as dissimilar as Google and eBay may be in their purported roles as secondary infringers, gripe sites in Section 230 cases are yet another increment less similar.

Yet the claims against all three types of defendants raise related issues:

  • Infringement allegedly arising out of SEO-related techniques, such as keyword purchases, metatags and supposed “black hat” SEO
  • Network or affiliate marketing where the ad content is not controlled by the defendant
  • Claims of consumer confusion based on affiliation or sponsorship arising out of such advertisements

Would the distinction among fact patterns and defendants be acknowledged in this discussion, which was advertised as addressing SEO in trademark infringement but whose focus was the arguably unique (and, by the way, pending) case of Google v. Rosetta Stone?  I was quite interested in this panel and not unsympathetic to Rosetta’s plight.  Yet.

My heart sank, however, when I heard John Ramsey–however understandably–utilizing the loaded vocabulary of advocacy, not reflection:  Defendants in SEO cases operate “rogue websites”; they use “black hat SEO”: they are guilty of the well-known tort of “diversion.”  Well, okay:  Rosetta is dealing with rogue sites utilizing black hat SEO that diverts traffic to trademark infringers.  Really.

But while the use of these terms by the man responsble for solving Rosetta’s counterfeiting problem is understandable, they colored the presentation at the outset.  Not that hardly anyone else seemed to mind.  Let’s put it this way:  When I turned to a neighbor sitting with me in the front row and made some comment about where this panel seemed to be going, a fellow behind me sneered, “What do you, work for Google or something?”

Read More…