Google AdWords Litigation Keeps Rolling In–Parts Geek v. US Auto Parts

By Eric Goldman

Parts Geek LLC v. US Auto Parts Network Inc.,3:2009cv05578 (D.N.J. complaint filed Nov. 2, 2009) [warning: 3MB PDF]. The Justia page.

In my world, we have an honor code among geeks–thou shalt not harm other geeks. As you can imagine, then, I was a little sad to see geek-on-geek litigation like this one, where auto parts geeks are suing computer geeks. Can’t we geeks all get along?

Parts Geek is an online retailer of auto parts. US Auto Parts Network is a competitor who has bought keyword ads triggered by Parts Geek’s trademarks. (However, when I searched this morning for Parts Geek, I didn’t see any US Auto Parts’ ads). In response, Parts Geek is suing its competitor as well as Google for the keyword advertising.

With respect to Google’s involvement, the complaint doesn’t break any new ground. I’m pretty sure it’s largely a rip of another complaint, but I can’t remember which one(s). According to my count, this lawsuit brings Google back up to 9 AdWords lawsuits.

In contrast, there are a couple of interesting facets of the claims against US Auto Parts. First, Parts Geek alleges (para. 42) that US Auto Parts set up a blog entitled “Auto Parts Geek” to divert traffic. Can you imagine a more perfect descriptive fair use situation? I think this will become my new favorite example.

Second, Parts Geek makes a Computer Fraud & Abuse Act claim because US Auto Parts allegedly crawled Parts Geek’s site to extract “proprietary data and pricing.” The CFAA claim seemed like an afterthought tacked onto allegations that focused almost exclusively on the trademark issues, and it wasn’t as fleshed out or robust as we normally see in anti-crawling lawsuits (i.e., no claims for breach of contract, trespass to chattels, copyright infringement or violations of a state computer crimes law). Nevertheless, I’m always interested in anti-crawling lawsuits, especially ones with anti-competitive angles like efforts to keep competitor A from learning competitor B’s prices. Further, Parts Geek claims that US Auto Parts’ access to its website was delimited by a “terms of use” which, from my limited review of the Parts Geek site, appears to be at best a very obscure “browsewrap.” The CFAA is more tolerant of obscure disclosures than contract law is, and this CFAA claim is hardly unusual, but I’m nonetheless troubled by the implications of treating obscure browsewraps as effective anti-crawling mechanisms.

The roster of pending AdWords cases:

* 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 (not initially a trademark case)

* 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

* Flowbee v. Google

* Parts Geek v. US Auto Parts