Geico Gets Go Ahead to Sue Google, Overture

[garyp]

Geico gets green light to sue Google, Overture
News.com
http://news.com.com/Geico+gets+green+light+to+sue+Google%2C+Overture/2100-1024_3-5345484.html

The unpublicized Aug. 25 decision by Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia delivered a blow to the two Internet search giants in their efforts to defend ad sales of trademarks as fair use. It could also ultimately threaten their livelihood: Google and Overture make money by selling ads linked to keyword-triggered search results, and many commercially driven searches are tied to trademarked brands such as Geico or Nike.

Geico representatives were pleased with the decision. "The judge rejected the argument advanced by Google and Overture that they should not be subject to liability for allowing their advertisers to bid on the Geico marks and, in the words of the judge, 'pay defendants to be linked to the trademarks,'" Geico spokeswoman Janice Minshall said.

"We look forward to the opportunity to prove at trial that this unauthorized use of Geico's well-known trademarks is unlawful and should be stopped," Minshall said.

Google spokesman Steve Langdon countered by saying, "We believe this suit is without merit and will continue to defend against it vigorously." The No. 1 search provider faces similar charges from American Blind and Wallpaper Factory.

Attorneys believe that the decision bodes ill for Google and Overture.

"This decision represents a serious defeat for Google and may open the floodgates to new litigation challenging Google's selling of trademarks as keyword triggers for advertising," said Terence Ross, a partner at law firm Gibson, Dunn & Crutcher who has represented plaintiffs in similar cases against adware makers Claria and WhenU.com.



That's business for you. Google's business inspiration/mentor Warren Buffet's company Berkshire Hathaway owns Geico

[David Wallace]

This will definitely be interesting to watch how this pans out. I know that I wouldn't want someone bidding on my registered trademarks. I guess the question is do you go after the one who actually violates the trademark or the one who facilitates it ... or both?

My guess is that Geico wants to make a statement and establish a ruling that will set a precedent for those to follow in facing this issue so they go after the big boys rather than the little fish.

[orion]

Excellent finding, Gary.

"My guess is that Geico wants to make a statement and establish a ruling that will set a precedent for those to follow in facing this issue so they go after the big boys rather than the little fish."

I agree with this statement, David. Imagine Geico going after SEMs/SEOs involved in the direct or indirect targeting of other companies trademarks. Scary thing. I assume that if they want to, they would do it just to send a message.

Orion

[Rnn]

Reading the decision---


quote:
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"defendants used plaintiff's protected marks in commerce"
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quote:
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Where keyword placement of...advertising is being sold, the portals and search engines are taking advantage of the drawing power and goodwill of these famous Marks"
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[Rnn]

Trial date set for December 14.

[donut]

Will be interesting to see the impact on resellers, affiliate marketers, and after-market products as well as second-generation sales (stuuf you want to resell on ebay, collector's items, etc.)

[mcanerin]

I'd like to remind people that just because a judge allows something to go to trial does not mean anything other than there is a bare possibility, assuming all of the plaintiffs claims are true, that a properly instructed jury *could* (not would) find for the plaintiff.

I would have been astonished if it had NOT gone to court. This is the type of thing that no judge I know would dismiss out of hand. It's not frivolous and therefore should be allowed to go forward.

This does not necessarily mean that the judge believes any particular side should win, it just means that it's possible for the plaintiff to win, therefore it's allowed. The necessary level for inclusion is very low, so it would take a very weak arguement for it not to have gone forward.

I'm not saying that Geico doesn't have a strong case (or weak one, for that matter), I am saying that it's FAR too early to be talking about it being a "huge blow", etc.

This should go to court, IMO. It needs to be straightened out and settled.

Every time I've ever gone to court on the defendant side I've always put forth an argument that the case should be thrown out on the first day. I'd be remiss not to. The only time that ever worked was when the other side didn't show up one time. I have no problem taking a cheap win but I certainly would not count on it as a strategy.

Yet I've won every case I've ever been in a courtroom with even though all but one went on to trial. Note: I don't practice publicly so it's fairly easy for me to say that - I haven't had a lot of cases. Real, practicing lawyers who belong to the local Bar normally can't say that since they can't be as choosy about their clients and the circumstances as I can (and have to).

The point is that just because you go to trial, it doesn't mean you are going to lose or that the judge has made any sort of judgement. It just means it's going to trial and it's not a frivolous issue and that everyone showed up in court that day. That's all.

This should be fun to watch :)

Ian