GEICO and Google Settle
By Eric Goldman
The terms of the settlement are confidential, so we can only speculate what happened. My guess is that a small amount of money moved from Google to Geico and Google made some special promises about who can purchase the keyword “Geico” and what happens if they do. Unfortunately, I don’t have any inside information, so this is true speculation.
So what do we learn from this case? We have 2 substantive rulings: (1) keyword triggering of text ads by search engines is a trademark “use” in commerce, and (2) the display of such text ads where the trademark isn’t displayed in the ad copy wasn’t proven to create consumer confusion. As an early data point, these holdings are helpful, but I don’t think either of these conclusions are definitively resolved. As a sign of how weak I think this case is as precedent, I don’t assign either ruling as reading in my Cyberlaw class.
Instead, I think we have plenty more litigation (and maybe some legislation) in front of us before we reach a doctrinal equilibrium. In particular, we have some heavy work ahead of us to reconcile the adware cases with the search engine cases regarding when keyword triggering constitutes a trademark use in commerce. So ultimately, I expect this case to be a forgotten footnote in the battle over keyword triggering, an early skirmish that, in retrospect, had little consequence.