February 18, 2011
Google Suffers Surprising Preliminary Loss in Keyword Advertising Case--Jurin v. Google
By Eric Goldman
Jurin v. Google, 2011 WL 572300 (E.D Cal. Feb. 15, 2011)
A surprising ruling! You may recall Jurin, trademark owner of the term "styrotrim." He sued Google in summer 2009, but quickly dismissed the lawsuit after he had a falling-out with his attorney. I thought the case was over then. Surprisingly, he found a new attorney and sued Google again in Fall 2009. The court fined Jurin $6,000 for wasting Google's time with the first go-around. Again, I thought the fine would end the case, but Jurin shockingly paid up. In round 2, Google has been progressively carving up the lawsuit, getting the court to dismiss some claims last March (including a pretty significant 47 USC 230 win) and more claims in September. Frankly, given the brutal treatment Jurin has been getting in court, I had already mentally counted this case as a win for Google.
Not so fast! In a stunning turnaround, the court refuses Google's motion to dismiss Jurin's "false association" claim. This is wholly unexpected for two reasons: first, the court had already rejected Jurin's "false association" claim TWICE (Jurin is on his Second Amended Complaint), and second, the court does not cite a directly relevant case on point--Heartbrand v. Lobel's--that dismissed a false designation of origin claim against Yahoo.
How did this case do a 180??? The court addresses Google's contention that a "false association" claim only applies when the defendant produces the falsely associated goods--which doesn't apply to Google, who simply presents advertising from other vendors. This argument worked in the March 2010 dismissal. This time, the court says "this Court declines to require Defendant to be the producer of goods in order to continue a claim for false association." In a footnote, the court acknowledges its internal conflict:
To the extent this conclusion runs counter to the Court’s 4 previous orders (ECF Nos. 19, 39) on Defendant’s prior Motions to Dismiss, the Court has now concluded that the analysis set forth herein is the correct one. Any earlier determination to the contrary is hereby revised in accordance with the provisions of Federal Rule of Civil Procedure 54(b).
Whoops. Nice try to bury an embarrassing flip-flop. Actually, IMO, the court got it right the first time(s).
This ruling would be a good choice for a motion for reconsideration to force the court to revisit its change with more precision. Failing that, it ultimately may be appropriate for an appeal.
On the plus side, the court does finally dismiss the breach of contract claim without leave to amend. I didn't really understand the court's discussion here, but at least the court got to the right result.
While this case plods to a more definitive conclusion, I fear this denial of a motion to dismiss will motivate a bunch of unnecessary, low-merit, and cost-unjustified lawsuits against Google and other search engines--just like we saw the Rescuecom case (also a motion to dismiss case) spurred the last flurry of lawsuits against search engines. Listen up, plaintiffs: this case only offers false hope! This is a bad ruling and Jurin will unquestionably lose in the end. Don't buy your lawyer a new boat when you could invest those dollars in a better product or more effective marketing.
PS: I have several other keyword ad cases to blog, including 1-800 Contacts, Consumerinfo.com and Binder. Sorry I'm running so far behind.
The roster of pending AdWords cases (I most recently double-checked the status of pending cases on September 11, 2010):
Ezzo v. Google
Rescuecom v. Google
* FPX v. Google
* John Beck Amazing Profits v. Google
and the companion Google v. John Beck Amazing Profits
Stratton Faxon v. Google
Soaring Helmet v. Bill Me
Ascentive v. Google
Jurin v. Google 1.0 (voluntarily dismissed), succeeded by Jurin v. Google 2.0
Rosetta Stone v. Google [on appeal]
Flowbee v. Google
Parts Geek v. US Auto Parts
Dazzlesmile v. Epic
* Pathak v. ICG
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