February 27, 2008
Rescuecom v. Google Oral Arguments Finally Calendared
By Eric Goldman
You may recall Rescuecom v. Google, where the district court dismissed a trademark infringement lawsuit against Google for selling trademarked keywords because the sales lacked the requisite use in commerce. We are all watching this case closely because (1) it involves Google, (2) the district court ruling was such a clean and decisive win for Google, (3) the Second Circuit ducked search engine liability in its influential 1-800 Contacts v. WhenU precedent and will now have to address it squarely, (4) an affirmance might prove persuasive enough to encourage other courts to harmonize on the Second Circuit's rule and eliminate the current circuit split on the trademark use in commerce question, and (5) a reversal could lead to doctrinal anarchy.
Over a year after the appeal and all of the briefs were filed, the Second Circuit has finally calendared oral arguments for April 3 at 10 am in NYC (500 Pearl Street, 9th floor). Each side has been allotted 10 minutes. I won't be there but I suspect many others will be.
More case resources:
* Commercial Referential Trademark Uses (Rescuecom v. Google Amicus Brief Outtakes)
* Rescuecom reply brief
* Law professors' brief by Stacey Dogan and me
* Electronic Frontier Foundation amicus brief by Jason Schultz, Corynne McSherry and Fred von Lohmann
* Public Citizen amicus brief by Paul Levy
* eBay/Yahoo/AOL amicus brief by Celia Goldwag Barenholtz, Janet Cullum and others of Cooley Godward Kronish
* Google's initial brief
* Rescuecom's initial brief
* District Court's opinion
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