January 29, 2013
Google and Yahoo Defeat Trademark Lawsuit Over Keyword Ads--Clara Ison v. Google
By Eric Goldman
I try to track every trademark lawsuit regarding Google AdWords. Thus, I am embarrassed to admit that I just learned about a trademark lawsuit filed in 2010 that flew completely under my radar. In my (limited) defense, the lawsuit was in state court, where I can't track cases nearly as easily as I can track them in federal court.
The plaintiff is a California psychologist. She sued Google and Yahoo for selling her name as triggers for keyword advertising and, I believe, for other issues (her complaint isn't a model of clarity). She only made state law claims, which helped keep the case out of federal court. Her complaint was cloned from the American Airlines v. Google complaint (I recognize the false drama in Para. 36, the claim that the "Plaintiff does not bring this lawsuit lightly"). Somehow, she got to a fourth amended complaint, but the court rejected her request to file a fifth amended complaint.
Earlier this month, the court granted Google and Yahoo's motion for summary judgment because Ison didn't show secondary meaning in her name. Apparently, expert Hal Poret did a survey showing the lack of secondary meaning among the target consumers, and Ison didn't have enough counter-evidence to create a triable issue.
For reasons that aren't clear from the papers I saw, Ison apparently didn't allege a publicity rights violation. I don't think selling keyword advertising on a person's name should constitute a publicity rights violation, but that issue has completely vexed Wisconsin judges in the Habush v. Cannon lawsuit. At minimum, publicity rights claims don't need secondary meaning, so it would have avoided the most immediate problem that scuttled her lawsuit.
Some related posts:
* Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie
The two other pending AdWords trademark lawsuits (that I know about!):
[Photo Credit: satellite dish antennas under sky // ShutterStock]
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