Rescuecom v. Google Law Professors’ Amicus Brief

By Eric Goldman

Rescuecom v. Google, 06-4881-CV (2nd Cir., law professors’ amicus brief filed February 22, 2007)

Eighteen law professors submitted an amicus brief in the Rescuecom v. Google case, urging the Second Circuit Court of Appeals to affirm the lower court’s ruling that Google’s sale of trademarked keywords does not constitute a trademark “use in commerce” under the Lanham Act.

The brief makes two main points. First, keyword ads enable the marketing of goods/services that are complementary to the trademark owner’s offering or otherwise relevant to the consumer’s interests, which in turn reduces consumer search costs. Second, direct trademark infringement occurs only when a party is marketing its own goods and services under the trademark owner’s brand; other players (such as search engines) are liable for that behavior only if they meet the standards of contributory trademark infringement.

Stacey Dogan and I were the principal authors of the brief. I will post some of my outtakes from the brief soon.

Other source material in this case:

Google’s initial brief

Rescuecom’s initial brief

District Court’s opinion

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