Ascentive, LLC v. Google, Inc., 2:09-cv-02871-JS (E.D. Pa. complaint filed June 25, 2009)
I’ve found this decision on Goldman‘s blog and it immediately caught my interest as I bears two interesting plus one previously totally unknown claim. The claimant, Ascentive, a software producing corporation that, after some bad press, got kicked (“suspended”) out of Google’s organic search results & whose AdWords account got disabled, is now suing Google. So good so far.
Ascentive’s claim is based on three arguments:
– Google hasn’t responded or so to speak acted in a proper way to Ascentive’s Trademark Compliant when being informed that signs similar to one of the A’s tademarks (“FINALLYFAST”) got used in the text and as third level domain or as part of the second level domain of thrid part Adwords advertisements (www.FinallyFastAgain.com; as Google came to the decision that A’s “mark differs too greatly from your [Ascentive’s] actual trademark“
– After Google had “suspended” Ascentive from its search results and disabeled its Adwords account at the beginning of Feb 2009, the http://www.ascentive.com website could no longer be located through Google. Still, when using the keywords “FAST PC” Google’s Keyword Suggestion Tool still suggssted the use of the keyword “FINALLY FAST PC”, which is, let’s admit it, pretty similar to the trademark of the plaintiff. So taking into account that Ascentive had spent between 2003 and its ban in 2009 more than 645,000 USD on Adwords advertising its website, and the fact that potenital customers can [I found Ascenive’s webpage via Google by the way] no longer locate this website, while thrid parties can still use it to adverise and point customers to their website; I think Ascentive does have a point here.
As a last point Ascentive brings forward that the search results of Google including its Adwords on the SERP amount up to a false designation of origin under then Lanham Act as:
which is explained a bit more in detail before in paragraphs 31 and 32:
So, to my understanding what Ascentive is trying to say is: Some browsers are configured in a such a way that when a user enters a domain into the address field of their browser, their browser may be designed to display Google results instead of showing the plaintiff’s website. So when a user wants to navigate to Ascentive’s homepage but is directed to Google, which does not show a reference to the A’s homepage but instead contains advertisements for similar products, or even contain advertisements which bear parts of the plaintiff’s trademark the user / potential customer migh be confused.
Now, assuming that browser are possibly configured in such a way (why not?) or that a high percentage of users are unable to distinguish between the Google search field and the Address filed in their browsers (for sure not! As typing it into the Google field is usually a better way of finding a page than tyoing in a URL that might be wrong) I think Ascentive has made an excellent point here.
Goldman asumes on his blog that the logic seems to be “that consumers expect to see the trademark owner in organic search results for the trademark and therefore consumers will be actionably confused if the trademark owner doesn’t appear there” and states that “I’m guessing Google will beat this prong of the complaint quickly and completely“
Considering it myself already as a delusions of grandeur I dare to disagree with Goldman.
Maybe in the US, but I think under Austrian law such a case might have a chance. Still, I have to admit that I am not even quite sure of how such a case should/would be treated and which provision of Austrian Law (Federal Act Against Unfair Competition of 1984, English translation available >>here<<) should/would be applied.
I was looking at §2 and §9 but the longer I think about it I’ve come to the conclusion it might possibly only be the “catch-all-clause” in §1. Still, the private law discretionary powers seems to keep pushing it out of the law of unfair competition towards anti-trust law…