Flowbee Latest Trademark Owner to Sue Google–Flowbee v. Google
By Eric Goldman
Flowbee International, Inc. v. Google, Inc., 2:09-cv-00199 (S.D Tex. complaint filed Aug. 13, 2009) [NB: the complaint is split into 2 PDFs totaling 8+ MB]
After the Jurin and Ascentive lawsuits against Google dissolved, the Google lawsuit tally is once again on the rise. Flowbee is the latest trademark owner to line up against Google. This brings the total number of AdWords lawsuits against Google back up to 8.
I can’t do a redline comparison to see how much of this complaint is a clone-and-revise, but I definitely recognized a lot of language from American Airlines’ complaints against Google and Yahoo. Most conspicuously, this complaint ripped off the stock Gibson Dunn apology (in Para. 6) that Flowbee “does not bring this lawsuit lightly.” It appears that this catchphrase has become the equivalent of the American flag lapel pin for politicians–you have to wear it or else you are clearly anti-American. Similarly, it seems like the emerging trend is that if you don’t declare your heavy heart for suing the beloved Google, by negative inference you clearly must be engaged in litigation frivolity. I wonder how Gibson Dunn feels that another law firm is invoking its catchphrase.
I can’t recall if language in Para. 63 is just copied from the Gibson Dunn complaint, but this complaint says “A statistically significant number of consumers are likely to believe falsely that it was Flowbee who ‘sponsored’ the links that appear above or alongside the PageRank search engine results.” This, of course, remains one of the most crucial unresolved empirical questions underlying all of the AdWords-related lawsuits: exactly what do consumers think is the reason they are seeing specific keyword-triggered ads? For now, I’m more interested in a procedural question: I would love to know the exact steps Flowbee and its lawyers took to satisfy themselves of this factual statement before asserting it.
If it had not sued, Flowbee would have automatically been governed by the Firepond class action lawsuit (representing all Texas trademark owners) if that case ever gets class certification. As a result, Flowbee could have just free-rode on that lawsuit. I wonder just how much Flowbee is losing from competitive keyword ads to justify the costs of bringing its own standalone action.
The current roster of pending AdWords cases:
* Stratton Faxon v. Google (not initially a trademark case)
* Flowbee v. Google