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Google and Trademark Laws

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Greg Lastowka is an Associate Professor of Law at the Rutgers School of Law, Camden, and he finished a (draft) paper titled Google’s Law [PDF], which he says is a discussion of trademark law matters and the suits against Google for its AdWords practices (with some general Google history thrown in). Greg wraps it up for us: 

For those that might be interested in a legal paper on search engines, the big question I’m working on is whether trademark law should play a role in keyword advertising practices, and specifically whether trademark law should retain the power to police the way trademarks are used in Google’s AdWords program.

Getting this issue right is important. AdWords revenues are key to Google’s business model and the way they intersect with trademark law is unclear. There are currently several federal courts struggling with this issue and reaching very different conclusions. This target audience for this paper is, primarily, those courts, and perhaps legislators and practicing lawyers.

My paper is divided into three Parts. First, so that courts have some grounding on this issue, I give a brief history of Internet search and the business models that have led to its development. Primarily I focus on the story of Google and the development of AdWords.

In Part II, I begin by discussing the general issue of “results regulation” – i.e. whether the state might exert some broader power to shape how Google links user queries to specific locations on the Web. Concluding that this sort of regulation would be incredibly difficult to achieve (both practically and politically), I then focus on trademark law. This leads to the “heavy legal doctrine” bit at the end of Part II, which recounts the past 10 years or so of caselaw developments concerning trademarks and search engines.

Finally, in Part III, I come out with my arguments. I claim that the two current legal doctrines that are most important in this area, “initial interest confusion” and “trademark use,” are seriously flawed and unhelpful. I argue that the best way to deploy trademark law in this area would be to focus on the public’s interest in being provided with a useful and efficient internet index. I describe how this goal has actually animated many of the decisions about trademarks and search engines during the past 10 years, although courts have not made this goal an explicit part of search engine doctrine.

So there’s an overview. The full thing is about 70 pages. The paper is still in draft, so if anyone has thoughts on things I’m missing, knows of some good sources or examples (or counter-examples) that I might add, or spots problems with the text … please comment here or send me an email. Thanks!

[Thanks Greg!]

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