Google Subpoenaed for Keyword Purchase Data–Rhino Sports v. Sport Court

By Eric Goldman

Rhino Sports, Inc. v. Sport Court, 02-1815 PHX-JAT and 06-0366 PHX-JAT (N.D. Cal. subpoena duces tecum issued June 14, 2007)

We’re all aware that Google has plenty of good personal information that can be discoverable. But until I saw this subpoena, I don’t think I fully appreciated how Google could facilitate competitive disclosures.

This is the latest development in the long-running case of Rhino Sports v. Sport Court, a rather garden variety trademark infringement lawsuit. When I previously blogged about the case in May, the plaintiff Sport Court (now Conner Sport Court International) claimed that Rhino Sports had breached an injunction by buying the keyword phrase “sport court,” when it fact Rhino Sports apparently had just broad-matched the word “court.” The parties aren’t done squabbling yet, because now Sport Court has issued a subpoena to Google requesting records of:

* all purchases of “sport court” as a keyword

* the associated “cost per click calculations”

* estimated ad positions for the keyword

* search volume trends for the keyword

Hello! Maybe I’m missing something big, and maybe I’m not aware of how common these types of subpoenas to search engines are, but this data sounds like it would have significant competitive value. At minimum, I suspect every trademark owner and SEO would LOVE to have this data.

This data may be yours for the price of a complaint and a subpoena–Google appears to be complying with the subpoena without a fight. On June 28, Google sent the following email to affected keyword buyers:

_____

Hello,

Google has received a civil subpoena for information related to your account in a case entitled Rhino Sports, Inc. and John E. Shaffer v. Sport Court, Inc., United States District Court, Northern District of California

To comply with the law, unless you inform us that you will file a motion to quash the subpoena or other formal objection by July 19, 2007, Google will assume you do not have an objection to production of the requested information and may provide responsive documents on that date.

For more information about the subpoena, you may wish to contact the party seeking this information at:

Mr. Jed H. Hansen

Thorpe North & Western

8180 South 700 East, Suite 350

Sandy, UT 84074

Phone: 801-566-6633

Fax: 801-566-0750

Unfortunately, Google is not in a position to provide you with legal advice.

If you have other questions regarding the subpoena, we encourage you to contact your attorney.

Thank you,

Google Legal Investigations Support

____

Naturally, recipients of these emails are perplexed and nervous (see, e.g., here and here). Are they Sport Court’s next defendants? Will the disclosed information put them in a competitive adverse position? Note that Google didn’t actually provide them with the subpoena, so the email recipients had no idea what Google was planning to disclose or for what purpose.

As I said, these subpoenas of keyword purchase data might be routine. But my instincts tell me they aren’t common yet, but they will be in the near future.

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