Rescuecom v. Google Second Circuit Oral Arguments

By Eric Goldman

Yesterday the Second Circuit heard oral arguments in Rescuecom v. Google, and reports from the oral arguments are trickling out.

James Grimmelmann provides a comprehensive report. Many thanks to James for taking the time to write this up. I know how long it takes to write a blog post like his, so we’re all the beneficiaries of his work. He concludes with a provocative prediction (thoroughly caveated in his post):

Prediction: 3-0 for Rescuecom, Leval authoring, in a narrow opinion that emphasizes the 12(b)(6) rule against incorporating matters not apparent from the face of the complaint. A Calabresi concurrence mentions the narrowness of the holding and explains why, in his view, it does not affect the settled understanding that retail shelving arrangements, handing out flyers in front of billboards, and other common offline practices are not trademark infringements. Neither opinion says much about the implication of the holding for other online businesses.

Wendy Davis of Mediapost was at the oral argument too, and she wrote up a recap article and an editorial.

Reading James’ report, I’m struck by how much of the time the judges spent spinning out hypotheticals, many of them pretty far-fetched. That’s unfortunate because judges in full fantasy mode can hypothesize some really crazy scenarios that have no relationship to reality, and writing opinions in response to these hypotheticals ultimately leads to more confusing opinions.

In response to James’ prediction, I do think that the case’s 12(b)(6) posture heightens the concern for the judges, so I could why the judges would decide to move the legal question to a summary judgment stage. Personally, I am a fan of resolving these issues on the 12(b)(6) because I believe defendants will win these cases anyway after full litigation, so the 12(b)(6) is just a quick way to reach the right result that would likely obtain later only at much higher transactions costs.

The case library:

* 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 [now mooted]

* Google’s initial brief

* Rescuecom’s initial brief

* District Court’s opinion

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