July 01, 2007
American Blinds Sanctioned
By Eric Goldman
Google Inc. v. American Blind & Wallpaper Factory, Inc., 2007 WL 1848665 (N.D. Cal. June 27, 2007)
The Google v. American Blinds trial is scheduled to start November 9, 2007. Last week, Google won a discovery dispute that might help it at trial. Google contended that (1) before May 2006, American Blind didn't adequately preserve, collect, and produce relevant evidence; and (2) in May 2006, American Blind CEO Steve Katzman intentionally destroyed evidence. The magistrate doesn't buy all of these contentions, but it is persuaded that some monkey business took place before May 2006. Accordingly, the magistrate issues the following sanctions (subject to the judge's approval):
1) If the judge allows Google to assert an unclean hands defense (because, like most keyword plaintiffs, American Blinds allegedly was bidding on competitor trademarks when it brought the lawsuit), "it will be deemed judicially established that American Blinds bids on its competitors' trademarks with the deliberate purpose and intent of attempting to entice persons who are specifically looking for the websites of those competitors to visit the website of American Blinds." This isn't likely to help Google much because the judge has all but rejected the unclean hands defense.
2) Of substantially more value, "it is hereby deemed judicially established that the first Sleekcraft factor-strength of mark-weighs in favor of Google." While this factor may have pointed in favor of Google in all cases, this will be a valuable asset for Google at trial by inhibiting (or completely blocking) sympathy-inducing assertions that the brands at issue are really popular or that American Blinds spends lots of money building the brands. Plus, to the extent a jury simply does factor-counting, the score is already 1-0 for Google with 7 factors left (or, American Blinds has to win 5 of the 7 remaining factors). To be clear, I'm not saying a jury would do simple factor-counting, but every factor in Google's favor helps it establish a defense.
3) $15k payable to Google.
* judge holds selling keywords is trademark use in commerce (March 2005)
* judge denies reconsideration and SJ (May 2007)
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