Sixth Lawsuit Filed Over Google AdWords, Plus an Assault on Google’s Organic Search Results–Ascentive v. Google

By Eric Goldman

Ascentive, LLC v. Google, Inc., 2:09-cv-02871-JS (E.D. Pa. complaint filed June 25, 2009)

Guess who got sued again? Google now has 6 pending lawsuits challenging its AdWords service. The previous five are:

* Rescuecom v. Google

* FPX v. Google

* John Beck Amazing Profits v. Google

* Stratton Faxon v. Google (this wasn’t a trademark case last I checked)

* Soaring Helmet v. Bill Me

The latest lawsuit has a different spin than the others. Ascentive makes software that it claims will improve the speed of its users’ computers and combat spyware. Earlier this year, Ascentive had a run-in with StopBadware, which initially labeled Ascentive as a scamware-like offering that hyped the threats on users’ computers to induce them to pay to upgrade their Ascentive software. (See the initial StopBadware alerts 1, 2). StopBadware has since reached a compromise with Ascentive and repealed its warning, a move that appears to have been fairly unpopular in some segments of the security community. (This post gives a sense of the sentiments towards Ascentive and StopBadware).

Around the same time, the Ascentive-Google relationship deteriorated, which Ascentive speculated was due to StopBadware’s classification (Google’s correspondence just cryptically cited “multiple policy disapprovals”). After Ascentive had spent over $645k as an AdWords customer in 2008, Google kicked Ascentive out of the AdWords program. A week later, Google completely dropped Ascentive’s website from its search index. As a result, Ascentive was frozen out of both Google’s organic search results and sponsored links, and not surprisingly, Ascentive suffered a “severe drop in online sales” from this double-whammy. Ascentive’s entreaties to Google were rebuffed.

Ascentive makes two broad legal attacks on Google. First, as has become typical, Ascentive alleges that Google commits trademark infringement and related torts by selling competitive ads keyed to its trademark and by suggesting that advertisers buy Ascentive’s trademarks in Google’s keyword suggestion tool. Among other specific issues, Ascentive complains that Google didn’t respond to its trademark appearing as a third-level domain in a competitor’s ad copy or the inclusion of “Finally Fast” in ad copy (Ascentive’s applicable trademark is “FinallyFast.com”). Overall, these complaints don’t break much new ground compared to prior allegations against Google’s AdWords program.

Second, Ascentive alleges a variety of legal violations because Google kicked Ascentive out of its organic search results index. This is a bit like KinderStart redux. The allegation that really caught my attention starts in Para. 83, which reads “Google’s refusal to list Ascentive’s website in its natural search result listings violates the Lanham Act” as a false designation of origin. Whoa! The complaint doesn’t explain this allegation thoroughly, but the theory seems to be that consumers expect to see the trademark owner in organic search results for the trademark and therefore consumers will be actionably confused if the trademark owner doesn’t appear there.

Framed that way, of course we know such a claim is DOA. Indeed, as exciting as it would be to see some meaty discussion on the topic of Google’s liability (or lack thereof) for deciding who gets into its search index, I’m guessing Google will beat this prong of the complaint quickly and completely. One way Google could get there is through 47 USC 230(c)(2) (which I just blogged about last week), which completely protects Google’s ranking decisions as a subspecies of filtering choices generally. However, to get there, a court will have to conclude that a false designation of origin claim isn’t an “IP claim” which is excluded from 230′s coverage. If it doesn’t want to reach that doctrinal issue, the court has a wide smörgåsbord of other doctrinal choices to squash this claim.