« Section 230 Doesn't Protect Employer From Negligent Supervision Claim--Lansing v. Southwest Airlines. Warning: Ugly Opinion | Main | Another Bad Ruling for PissedConsumer on Trademark and 47 USC 230 Claims--Amerigas v. Opinion Corp. »
June 20, 2012
CYBERsitter Sues Google for AdWords Trademark Infringement
By Eric Goldman
CYBERsitter LLC v. Google, Inc., CV12-5293 (C.D. Cal. complaint filed June 18, 2012)
CYBERsitter competes with Net Nanny and ContentWatch (apparently both owned by the same entity, ContentWatch) in the Internet filtering software niche. CYBERsitter claims ContentWatch ran keyword ads triggered on its trademark with ad copy like:
CYBERsitter | Net Nanny.com
Protect Your Children with #1 rated CYBERsitter Software. Just $29.99
The complaint version I saw didn't include any screenshots of the ads in question, so we're missing some key info. Most obviously, the complaint implies, but doesn't specify, that the ads linked to netnanny.com. The complaint does alllege that netnanny.com doesn't sell CYBERsitter's competitive product.
Without the linked URLs, we can't assess the likelihood that these ads were placed by ContentWatch's affiliates instead of ContentWatch itself. I have a hunch these are affiliate-placed ads. That would make a big difference because ContentWatch probably isn't liable for ad buys by its affiliates. See 1-800 Contacts v. Lens.com.
Either way, I suspect CYBERsitter and ContentWatch can work out their differences. As I've documented many, many times, the money at issue in these competitive keyword ad buys usually comes nowhere close to the costs of litigation (just one of many examples), so the most economically rational thing for both parties to do is strike a settlement (even if imperfect) rather than shoveling cash over to the lawyers.
Now, about CYBERsitter naming Google as a defendant. This is the first time Google has been sued for trademark infringement over its AdWords product in over a year, so it's the first such lawsuit since the Fourth Circuit's Rosetta Stone v. Google opinion. Frankly, I expected more lawsuits would be filed against Google after the Rosetta Stone opinion, just like the Rescuecom opinion opened up the floodgates in 2009. Perhaps this filing is just the leading edge of a litigation tsunami, but I'm not feeling that way. This complaint doesn't explicitly make any gestures towards the Rosetta Stone opinion, and it felt to me like an idiosyncratic one-off.
Indeed, from my vantage, the Google piece doesn't look very well-prepared. CYBERsitter doesn't allege that it filed a trademark complaint with Google, which would have automatically blocked the CYBERsitter references in the ad copy it's complaining about, nor does CYBERsitter claim that it gave Google notice of the problem in any other way (C&D, etc.). Based solely on the complaint's allegations, CYBERsitter can't show that Google knew there was a problem at all. If CYBERsitter didn't give Google a chance to fix the problem pre-litigation, I doubt a judge will be very supportive of CYBERsitter.
Furthermore, while ContentWatch might be pliable, especially if its affiliates went rogue on it, Google will fight this case with everything it has. I've never understood why plaintiffs choose to bring into their lawsuits a Big Dog that mints money when their beef is just with a competitor. The Wealthy Big Dog will fight to the death and has the resources and determination to overwhelm the little guy, or at least wound the little guy seriously (like leaving CYBERsitter with fewer trademarks than it started the litigation with--see, e.g., American Blinds). Given the sheer irrationality of bringing Google into a garden-variety competitor dispute, I'm laying odds that CYBERsitter will simply drop Google from the lawsuit without getting any concessions from Google--just like Rescuecom and American Blinds and Parts Geek and numerous other challengers have done.
Process note: while preparing the post, earlier today, I emailed both CYBERsitter's lawyer and ContentWatch's PR person for comments about this lawsuit. I haven't gotten a response from either, but I'll update the post if I do.
[Update: CYBERsitter's lawyer declined comment to me but provided some perspectives to the National Law Journal.]
Related suits: The roster of currently pending trademark lawsuits against Google regarding AdWords (I am resetting this roster to eliminate all of the post-Rescuecom cases that Google has resolved):
Note #1: the FPX class action lawsuit voluntarily dismissed with prejudice shortly after Google defeated class certification.
Note #2: Google and Yahoo were dismissed from the Pathak case May 25, 2011 for Pathak's failure to serve them.
Note #3: for now, it looks like Google is out of the Groupion v. Groupon lawsuit because Groupion lost its substantive case against Groupon.
TrackBack URL for this entry: