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July 09, 2012
Google Sued Again for AdWords Trademark Infringement--Home Decor Center v. Google
By Eric Goldman
Home Decor Center v. Google, CV12-05706 (C.D. Cal. notice of removal filed July 2, 2012)
After the 4th Circuit's Rosetta Stone v. Google ruling, I wrote:
Just like Google got hit with over a dozen lawsuits in the wake of Google's Second Circuit "loss" in the Rescuecom case, I imagine a bunch of low-merit suits will follow this ruling too.
The floodgates haven't opened yet, but we're seeing more litigation against Google now than we did in the year prior to the Rosetta Stone ruling.
This lawsuit initially was filed in California state court in late May but just showed up on my radar when Google and Home Depot removed it to federal court. As with several other recent keyword lawsuits against Google, the plaintiff's real beef is with its competitor--in this case, Home Depot, who allegedly ran confusing ads promoting "HomeDecorators.com" but referencing "Home Decor Center" in its ad copy.
The complaint allegations aren't very clear (typical), but Exhibit A (especially pages 18-19 of the PDF) does show some oddities. For example, page 19 indicates that a search for "homedecorcentet.com" (note the typo) triggered an ad with a title of "HomeDecorCenter.com" and the remaining ad copy references and links to HomeDecorator.com. Page 18 is harder to read but shows a similar result. Especially given the typo, this type of ad probably isn't the result of some odd algorithmic ad generator, so I'm curious to learn more about how this happened. I believe the plaintiff could have stopped these ad copy references by filing a trademark complaint with Google, so I'm also curious how Google addressed the plaintiff's cease-and-desist (the complaint says nothing changed).
Of course, "Home Decor Center" is a very descriptive trademark. Indeed, just this January, they filed for trademark registration on the supplemental register. So even if all of the plaintiffs' allegations are true, among the many possibilities is that Home Depot and Google concluded that the plaintiff hasn't achieved secondary meaning or that descriptive fair use applies. As I've commented before, the trademark owners with the most marginal trademarks are often the most highly litigious. (See, e.g., one of my poster children for ridiculous trademark lawsuits, 1-800 Contacts).
Are more lawsuits like this in the works for Google? Almost certainly. Will lawsuits like this pose a problem for Google? No. I think both the CYBERsitter and Home Decor Center fit the "low merit" categorization I initially projected. In fact, it wouldn't surprise me if both plaintiffs voluntarily drop Google so they can conserve their resources to fight their real target, their competitor.
Roster of pending AdWords trademark suits against Google:
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