Rosetta Stone v. Google Amicus Briefs in Support of Google
By Eric Goldman
Three amicus briefs were filed in support of Google in the Rosetta Stone v. Google appeal.
This is the “industry” brief, although in the past, typically more players have joined a brief like this. Easily the most interesting aspect is that eBay emerged as a Google supporter after an organization it supports, the Association for Competitive Technology, joined a pro-Rosetta Stone brief along with co-joiner Tiffany. I haven’t heard what happened in response to that apparent oversight, but I’ve always assumed it would end badly for eBay’s relationship with ACT. (As of now, eBay is still listed as an ACT “supporter”).
Substantively, the brief addresses contributory trademark infringement standards and the importance of keyword advertising. The brief surprisingly engages in a few places with the Carfax amicus brief (most of the time, amici ignore each others’ briefs). The brief also tries to distinguish the troubling 4th Circuit decision in Georgia Pacific Consumer Products LP v. Von Drehle Corp.
This brief argues that Google doesn’t make a trademark use in commerce (I can’t believe they waded into those waters again) and Google and its advertisers engage in trademark fair use.
We argue that, because both keyword advertising, and the “sale” of keywords, are commercial speech, the regulation of this practice must be consistent with the First Amendment. Next, we discuss trademark law’s basic principles and show that they are limited to protecting consumers against confusion about whether goods and services emanate from the trademark holder, and show that it is not Google’s function to deliver Internet users to a trademark holder’s official website. We further contend that those who compete with or criticize a trademark holder are entitled to call their own web content to the attention of those who have displayed interest in a trademarked term. Finally, we argue that, if any trademark confusion is at issue in this case, it is “initial interest confusion.” This Court has previously expressed skepticism about that doctrine; Rosetta cannot rely on that concept to hold Google liable here.
The case library:
* Public Citizen amicus brief in support of Google.
* Public Knowledge/EFF amicus brief in support of Google.
* eBay/Yahoo amicus brief in support of Google.
* Google’s opening response brief.
* UK Intellectual Property Law Society amicus brief in support of neither party.
* Rosetta Stone’s opening appellate brief: redacted and unredacted.
* INTA’s amicus brief in support of Rosetta Stone.
* Carfax et al amicus brief in support of Rosetta Stone.
* Association for Competitive Technology et al amicus brief in support of Rosetta Stone.
* ConvaTec et al amicus brief in support of Rosetta Stone.
* Volunteers of America amicus brief in support of Rosetta Stone.
* District court’s main opinion granting SJ. My blog post.
* District court’s opinion granting a motion to dismiss on the unjust enrichment claim.
* Rosetta Stone’s initial complaint. My blog post.