Update 51: August 19, 2007
1. Defamation Lawsuit: Gene Phillips v. Google
Gene Philips, a Dallas businessman found some allegedly false, misleading and
defamatory statements about him on the internet e.g. a Dallas Business Journal
article, which implies that Philips knowingly participated in organzied crime
activities (he was found not guilty of all the charges brought against him). And
guess, who he is suing. Correct answer is Google! He claims that by providing a
link to the articles, Google publishes the false statements...
should be protected by 47 USC 230 against such claims and I can see no way, how
the plaintiff can get around this defense.
Phillips v. Google Inc., 3:2007-cv-01236 (N.D. Tex. complaint filed June 4,
removed from state court July 11, 2007)
2. Google looses Gmail trademark case in Germany ... again!
Google has changed the name of its German email
service to "Google Mail", because Daniel Giersch, who allegedly owns the rights
to "G-Mail" in Germany and started using the mark for his
own physical mail service in 2000,
won at both the preliminary and final stages of the litigation
before the district court in Hamburg. But Google did appeal the decision and now
has lost again (Az 5 U 87/06). This could be the end of this
long-running case in Germany over the "Gmail" trade mark, because the Hanseatic
Higher Regional Court in Hamburg denied Google leave to appeal to the Germany's
Federal Court. Google's last chance is to file for non-admission of the ruling
at the Federal Court to prevent the ruling from taking effect.
Information Week Google said in an e-mailed statement: "Google owns the 'Gmail'
trademark in over 60 countries worldwide and we have used it ever since we
launched the service in 2004. While we regret the German court's decision, it
will in no way affect our ability to continue to provide Web e-mail to our users
in Germany. Our German users will continue to use 'Google Mail' and enjoy the
same experience as users of Gmail worldwide."
In addition to the lawsuit in Germany,
Google is also taking action against Giersch in Spain, Portugal and
July 5, 2007: Williams,
German courts demand no more Gmail squabbling, The Register:
" German courts have banned Google from further attempts to wrestle the
rights to the "Gmail" trademark away from a businessman who registered the
name several years before it launched a webmail service"
3. Google may have to reveal AdWord secrets
In 2002, Sport Court sued Rhino for trademark infringement, and a year
later, Rhino agreed to an injunction restricting it from using the "Sport Court"
trademark "on or in connection with the Internet. Then, in early May 2007, Sport
Court accused Rhino of violating the injunction, claiming that the company had
purchased the "sport court" keyword phrase on Google AdWords.
But Rhino had merely purchased the "broad match" terms "court" and "basketball
court," not the specific term "sport court." So the court rejected plaintiff's
claim, but he has now issued a subpoena to Google, requesting information on
"all purchases of 'sport court' as a keyword," "associated cost per click
calculations," "estimated ad positions for the keyword," and "search volume
trends for the keyword." That includes information about Sport Court's AdWords
account as well as the accounts of other businesses.
Google has sent out a warning letter to an undisclosed number of its
advertisers to inform them of the civil subpoena it received, and given them
until July 19th to respond. If those advertisers do not formally object, Google
may give over their ad data to legal authorities. The letter was
posted on the Technology and Marketing Law Blog.
4. ACCC takes Google to court over sponsored
The Australian Competition and Consumer
Commission (ACCC) is suing Google over
alleged misleading and deceptive conduct in
relation to sponsored links.
1. Google is failing to create a clear
enough distinction between its ”organic”
search results and the adverts.
2. Google, by causing that ads for a
company appeared on their site when users
entered the names of competing firms,
engaged in misleading and deceptive conduct
in breach of section 52 of the Trade
Practices Act 1974 (Trading Post,
who was also sued, had purchased ads next to
the search terms 'Kloster Ford' and 'Charlestown
Toyota', two of its leading competitors).
The case has been listed for preliminary hearing on
5. In short:
I wont be covering all the YouTube lawsuits here in
detail, because they are hardly search engine law related (even though Google
owns YouTube). But I will point out the most important developments with links
to other sources. For the latest news in the Tur v. YouTube lawsuit see: The
Proto- YouTube copyright suit lives on to darken another Google day and
Technology & Marketing Law Blog,
Tur v. YouTube SJ Motions Denied.
Google calls itself Guge in China, because
Chinese people allegedly have problems pronouncing Google. Guge Science and
Technology Ltd. Co. doesn't like this and wants Google to change its
commercial name. In a lawsuit brought before a Beijing court the company
alleges it is constantly disturbed by people calling up its office trying to
contact the search engine. So the plaintiff claims that U.S. search engine's
registered Chinese name is too similar to its own and has harmed its
operations. For more information see:
Cheeky China company says to sue Google over name.
No update without new AdWords related
trademark law cases, this time:
FragranceNet.com, Inc. v. FragranceX.com, Inc., 2007 WL 1821153 (E.D.N.Y.
June 12, 2007). According to Eric Goldman this is the fourth court in a
Second Circuit jurisdiction voting that buying keyword ads isn't a trademark
use in commerce. See:
Another Court in 2d Cir. Says Buying Keyword Ads Isn't TM Use in
Commerce--FragranceNet.com v. FragranceX.com.
American Airlines filed a lawsuit in U.S. District Court in Fort Worth
against Google over the Internet company's sale of keyword ads for rivals
triggered by its own trademarks seeking unspecified damages -
American Airlines v. Google, 4:07-cv-00487 (N.D. Tex.
complaint filed Aug. 16, 2007)
Google and Belgian newspaper group Copiepresse are
still attempting to resolve their conflict out of
court. Plaintiffs argue that Google profits unfairly
by posting snippets of its members' news stories on
Google's Web sites without paying for their use. See
Google Appeals Belgian Copyright Ruling.
New in Legal Resources
Fitzgerald, Brian / O'Brien,
Damien / Fitzgerald, Anne,
Search Engine Liablity for Copyright Infringement
Lawless, Matthew D., "Against
Search Engine Volition" . Available at SSRN:
The Structure of Search Engine Law
Nicole Bashor, Comment,
The Cache Cow: Can Caching and Copyright Co-exist?, 6 J.MARSHALL REV.
INTELL. PROP. L. 101
Michael Driscoll ,
Will YouTube Sail into the DMCA’s Safe Harbor or Sink for Internet Piracy?,
6 J. MARSHALL REV. INTELL. PROP. L. 550 (2007).
Renner, Cornelius, Anmerkung
zu OLG Düsseldorf, Urteil vom 23.1.2007, Az. I-20 U 79/06 - AdWords, CR
Roggenkamp, Jan Dirk,
Anmerkung zu LG Erfurt, Urteil vom 15.3.2007, Az 3 O 1108/05 - Thumbnails,
K&R 2007, 328-330
Marktbeherrschende und öffentlich-rechtliche Suchmaschinen, K&R 2007,
Google-Buchsuche, GRUR Int. 2007, 562-569
Lemley, Mark A., "Rationalizing Internet Safe Harbors" (April 10, 2007).
Stanford Public Law Working Paper No. 979836 Available at SSRN:
Pasquale, Frank A., "Copyright in an
Era of Information Overload: Toward the Privileging of Categorizers" .
Vanderbilt Law Review, 2007 Available at SSRN:
Pasquale, Frank A. and Bracha, Oren, "Federal Search Commission? Access,
Fairness and Accountability in the Law of Search" (July 23, 2007). Available
Travis, Hannibal, "Google Book Search
and Fair Use: iTunes for Authors, or Napster for Books?" . University of
Miami Law Review, Vol. 61, pp. 601-681, 2006 Available at SSRN: