It was recently reported that a U.S. Court of Appeals for the 4th Circuit has just revived a long-standing trademark infringement case against Google Inc., filed by the language learning firm Rosetta Stone, and initially directed a district court to determine if Google had indeed infringed upon any copyrights. The case surrounds Google’s AdWords – Rosetta Stone has alleged that the search giant allowed third parties, including those involved in software piracy, to buy the right to use Rosetta Stone trademarks or other terms confusingly similar in Google’s Adwords advertising program.
The lower court sided with Google in the most recent round of the case, but now the U.S. Court of Appeals has overturned this decision, stating that the search giant “intended to cause confusion in that it acted with the knowledge that confusion was very likely to result from its use of the marks”. The Court of Appeals cited that since Google changed its AdWords policy in 2009, then allowing keyword consumers to essentially buy copyrighted trademarks in certain situations, the company might have been aware that infringement might be occurring. The Court of Appeals pointed out the lower court’s mistake in finding that it wasn’t reasonable to infer that Google users could be confusing into thinking that counterfeit Rosetta Stone products were the real thing. Google’s own study on the matter confirmed that some users weren’t aware that they were being fleeced by the ads.
“We conclude that there is sufficient evidence in the record to create a question of fact as to consumer sophistication that cannot be resolved on summary judgment,” said the Court of Appeals. “The record includes deposition testimony from Rosetta Stone customers who purchased counterfeit ‘Rosetta Stone’ software from sponsored links that they believed to be either affiliated with or authorized by Rosetta Stone to sell genuine software.”
It would appear the case, moving along since 2009, might take another long while.