Google And Yahoo Defeat Last Remaining Lawsuit Over Competitive Keyword Advertising (Forbes Cross-Post)
Recently, a California appellate court dismissed another competitive keyword advertising lawsuit against Google and Yahoo. As far as I know, it was the last remaining lawsuit of its kind. As a result, for the first time in at least a decade, I believe there are no more pending lawsuits against search engines regarding competitive keyword advertising.
About the Ruling
The court’s ruling was not surprising. The plaintiff, Carla Ison, is a California psychologist. She claimed that Google and Yahoo displayed “unauthorized search results,” including paid ads like Adwords, on searches for her name. Ison proceeded with only minimal help from a lawyer, so she faced long odds challenging Yahoo’s and Google’s multi-billion dollar revenue lines. Leaving nothing to chance, Yahoo retained an expensive trademark survey expert (Hal Poret) to destroy Ison’s trademark. Poret opined that (in the court’s words) “the net level of awareness of Ison was less than zero percent, as the rate of awareness of her name did not exceed the false positive rate.” Ison’s efforts to provide more favorable evidence were unavailing.
Citing Poret’s evidence of minimal consumer recognition of her name, the court easily concludes that Ison doesn’t have any trademark rights at all in her name, so there’s no trademark to enforce. For this reason, the court doesn’t reach more interesting questions about the legitimacy of competitive keyword advertising. Ison could still appeal the case to the California Supreme Court, but the odds of them taking the case is virtually zero, so I think the case is over.
As far as I know, Ison was the last plaintiff still challenging search engine sales of trademarked keywords. The other fairly recent challenge, brought by Parts.com, ended in 2014 (Google won a dismissal in June 2014, and Yahoo settled in November 2014).
The ruling that Ison lacked trademark rights isn’t unprecedented in search engine competitive keyword advertising cases. Several other plaintiffs have ended their lawsuits with a court declaration that they don’t have trademark rights. See, e.g., the lawsuits by American Blinds and Home Decor Center.
Although no trademark owner is currently challenging Google or any other search engine over selling competitive keyword advertising, no US court ever clearly endorsed the practice, either. Search engines won on other grounds (such as, in this case, deficiencies with the plaintiff’s trademark), or the trademark owner simply gave up; or in a limited number of cases, the search engine settled (like Yahoo settling the Parts.com case). Thus, there’s nothing preventing a trademark owner from bringing a similar lawsuit in the future. However, I think such future suits are unlikely because it’s impossible to ignore the search engines’ practical successes in court. Further, as more time passes, I think courts will be even less inclined to disrupt such a venerable and helpful practice. So despite the lack of definitive precedent, I think the legal questions over selling competitive keyword advertising are de facto resolved in the search engines’ favor.
The legality of buying (as opposed to selling) competitive keyword ads is also not definitively resolved in court, and trademark owners are still bringing cases against keyword advertisers. However, even these lawsuits are proving hard to win in court, so I anticipate we’ll see a gradual tailing-off of the trademark owner-vs.-advertiser lawsuits too.
Case citation: Ison v. Google, Inc., 2015 WL 3395574 (Cal. Ct. App. May 27, 2015)
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