Tag Archives: Google

Which exit did we get off, again?

Originally posted 2008-09-07 00:34:46. Republished by Blog Post Promoter

Well, maybe we’ve been too hard on the Democrats here at LIKELIHOOD OF CONFUSION®.  Perhaps unlike the GOP, they’ve got good, progressive IP counsel out there, and maybe an Obama Administration will take a more realistic view of what you can and can’t do on the Internet.  At least we know they don’t have any hangups about “deceptive key word advertising” or “Internet traffic diversion,” the modern bugaboos of Internet trademark litigation.  Turns out they think those things are pretty keen!

Here’s a screen shot (click for full size) of a search result you got if you searched Google for SARAH PALIN SPEECH on Saturday night [updated; see below] — note the sponsored link on top, in color, that links to the Democratic Convention website, DemConvention.com:

The link actually tells Internet users they’re going to a page called DemCovention.com/RNC.  Wow, are they showing the Palin speech in order to get you to compare it critically to what the DNC has to offer?  It’s comparison shopping, right?  A modern-day Miracle on 34th Street!

Well, no.  Here’s what you actually get: Read More…

INTA and the big tent (updated)

Originally posted 2012-05-13 22:00:26. Republished by Blog Post Promoter

Revised from Friday’s original post.

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:   Read More…

Google, Geico Good to Go

Originally posted 2014-03-14 10:41:00. Republished by Blog Post Promoter

Google and Geico have settled.

Google down, boogy oogy oogy

Originally posted 2006-05-28 15:53:53. Republished by Blog Post Promoter

Ben Charny at eWeek reports: “Google’s ‘Oogle’ Hunters Bag Another One.” What’s it all about? The magic of the double-o, reports Charny:

Google’s Rose Hagan, senior trademark counsel, explained during an an interview that Google is continuously monitoring the Internet for sites with names like Boogle, Foogle and Hoogle, etc. It usually will only go after Internet search engine sites with similar-sounding names.

After each potential Google trademark offender surfaces, it first gets a Google letter of warning, she said. That usually does the trick, and the name is soon changed.

“We aren’t trying to own the double O,” Hagan said. “We take steps to protect the Google brand.”

Ooh!   Good faith to boot.  Wouldn’t want a bad blood with Google — let’s keep the mood good.  Dood.

Sun, Oracle, Microsoft, Google, trademark, patents, copyright and David Boies

Originally posted 2011-09-28 10:33:28. Republished by Blog Post Promoter

Eastern District of New York, BrooklynThere’s a lot going on, conceptually, in this article entitled “The $800M question: What’s the difference between trademark and copyright?” in VentureBeat:

Ten years ago, when Sun sued Microsoft over Java, Sun alleged trademark infringement because Microsoft was not implementing Java according to Sun’s specification. Microsoft had entered into a license agreement with Sun — promising to follow the specification. When Microsoft deviated from the specification, Sun rightly claimed breach of contract and trademark infringement. Sun sought an injunction against Microsoft to stop using the Java logo and to remove the incompatible Microsoft code from the market. Sun ultimately prevailed, and received a large settlement, in part due to Microsoft’s anticompetitive conduct over Java.

Check.  A fine point in trademark licensing:  If you manufacture a widget and use my trademark, under a license, to tell the world that you’ve got my widget-juice running it, your willful failure to follow the specs is both a contract breach and a trademark infringement. Next:

Attorney David Boies . . . served as Special Trial Counsel for the United States Department of Justice in its antitrust suit against Microsoft. At the conclusion of that antitrust suit, U.S. District Court Judge Jackson found that Microsoft took actions “with the sole purpose of making it difficult for developers to write Java applications … that would allow them to be ported.” . . .

Boies now represents Oracle (which has since acquired Sun, including its rights to Java) in its case against Google for patent and copyright infringement of Java. He surely knows the differences between the issues in the prior lawsuits. Unlike Microsoft, Google never licensed Java from Sun. It never agreed with Sun to implement the Java specification, and it doesn’t call its product Java. It calls it Android and Android is not a candidate for an antitrust case. In fact, the Microsoft .NET Framework and Java are the two dominant middleware platforms. Read More…

And Let Google the Dogs of Law

Originally posted 2011-05-23 16:57:09. Republished by Blog Post Promoter

It had to happen — another piece of territory now being rented out in the Lanham-Act-as-competition-buster industry: A new service has announced that it will scoop up the Google infringements for ya for a few kopeks. Their proud slogan: “Online trademark infringement is the act of using search keywords that specifically target another company’s brand to generate online traffic. ” The name of their company, “Gooroo,” is obviously meant to “free ride” on the trademark equity of “Google,” but if they’re goring that ox anyway, may as well take an extra chunk, eh?

Myth becomes law becomes commercial reality — all based on the spurious judical-activism-made concept of “diversion” and its handmaid, “initial interest confusion.” But I repeat myself.

Still, watch this space: Some folks at INTA just may have something helpful to say about this….

You mean after the attorneys buy new houses?

Originally posted 2012-01-30 15:50:23. Republished by Blog Post Promoter

Robert Scoble asks, “What happens after Google loses?”:

Viacom wants to play “force folks to play on our turf.” Does the Internet reward that kind of behavior?

It hasn’t in the past. PodTech tried that strategy. To watch my videos you used to have to go to PodTech. Then in January we let go a little bit of our controlling attitude and made a player that you can embed on your own site. What happened?

Traffic tripled.

So, if I were a smart content guy (hint, I’m not) I’d be opening my video archives and saying “post them where you want.”

If I were even smarter I’d say “cut them up, edit them, mash them, do what you want with them.” I’m not that smart either.

And, if I really were blessed with a brain like Douglas Engelbart’s I’d make video for where the big audiences are (hint: it’s YouTube, StumbleUpon, Digg, Flickr, Blogs, and search engines like Google/Yahoo/Live).

I’m not that smart, but other people in this industry are.

Does the technology stream really flow into the revenue stream, though? I understand that YouTube made a lot of money — well, by selling itself; I am not sure I understand how it actually makes money as a business — but I haven’t heard of too many people getting too rich by uploading their content onto YouTube. Have you?

UPDATE:  We never got the answer to Scoble’s question — Google didn’t lose at all.

Right to Google search position?

Originally posted 2014-05-14 12:43:25. Republished by Blog Post Promoter

Reuters reports:

A parental advice Internet site has sued Google Inc., charging it unfairly deprived the company of customers by downgrading its search-result ranking without reason or warning.

It’s possible that Google determined this company was gaming the system. It’s possible that someone at Google was punishing them for who knows what. But this doesn’t help:

KinderStart contends that once a company has been penalized, it is difficult to contact Google to regain good standing and impossible to get a report on whether or why the search leader took such action.

The technology area is unique in that a company can, on the strength of a great product like Google, rise out of nowhere to become a dominant power not only in its sector but across the entire economy. But the flip side is that while companies like Google and Microsoft can service millions, even billions of people, they can’t possibly keep up develop, nurture or respond to customer relationships the way brick and mortar companies must. Of course, Google could rebut this accusation; we have only one side talking here. We’ll be listening for the other.

UPDATE: A blogger (Blogger, that is) angle implicating more of the same — blowing off customers (yes, they’re customers even if they don’t pay) without explanation. Hat tip to Desert Light Journal.

UPDATE:  Some interesting skepticism.

Google Takes Offense, Takes Offensive (for a change)

Originally posted 2013-08-20 13:18:08. 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.”

Guest Post: Fair Use or Foul Ball?

Gregory Winsky

Gregory J. Winsky of Archer & Greiner, PC

See below for more information about my colleague Greg Winsky, who is just snarky enough to merit a guest post on LIKELIHOOD OF CONCLUSION on a topic I’ve been covering — and inviting guests to cover — for years despite his being way overqualified as a real, live intellectual property lawyer.

When copying 20,000,000 books without permission is not copyright infringement

Jim Bouton’s last pitch to Google wasn’t Ball Four, at least according to the umps of the Second Circuit who decided — after replay — that the digital giant had smacked the pitcher-turned-author’s hanging slider more than 330′ directly  over the foul pole boundary of the short porch in right.

In The Author’s Guild v. Google Inc., a three judge panel of the Second Circuit Court of Appeals affirmed a grant of summary judgment in favor of Google by the District Court of the Southern District of New York against the former Yankee pitcher, one of the named plaintiffs, and The Author’s Guild, the nation’s professional organization for writers, once headed up by such luminaries as Pearl Buck and Erica Jong (which organization had been found to lack standing to bring claims of copyright infringement on behalf of its members).

The 2013 summary judgment decision held that Google, having made digital copies of the full text of tens of millions of books without the permission of the authors and having provided a publicly available search function with an electronic viewer that copies out “snippets” of works retrieved, had not infringed Bouton’s, nor anybody’s, copyright, because Google’s digitization was “transformative” and therefore constituted “fair use” under the Copyright Act.

BallFourStating off the bat that “[t]his copyright dispute tests the boundaries of fair use, “the Second Circuit expanded the strike zone of the Fair Use exception in Section 107 of the Copyright Act, even in the face of the assertion of the plaintiff/copyright holders that Google’s “ultimate profit motivation” in the creation of this new monolithic digital library1 should obviate a finding of fair use under first prong of the Section 107 analysis, that is, “whether such use is of a commercial nature.”

The appellate court disagreed, stating that “we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose.”

Read More…