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Infuriatingly, District Judge Brinkema in the Geico vs. Google case has
written a judgment that opens the door to
reinterpreting her previous judgment. Let’s backtrack.
- December 16, 2004, Brinkema issued a summary
judgment in Google’s favor, throwing out Geico’s first round of complaints of trademark violation. Geico claimed
that any ad using Geico trademarks caused confusion for the consumer, and should be ruled illegal—and that
Google should stop allowing advertisers to use them.
- The case didn’t end there. Brinkema continued to hear arguments on Geico’s second complaint, which was that
specific ads cause confusion. The difference here is that the advertiser would be liable for writing an illegal ad,
but Google would not be liable for allowing the advertiser to write a good ad using Geico’s trademark. Google never
disagreed, in principle, that an advertiser could write an ad that confuses trademarks.
Brinkema has now ruled that Geico’s second argument has merit, and urged the two companies to reach a settlement
without Brinkema having to actually hear the case. This is problematic because Google should not be held responsible
for the second complaint. Further, Geico is now spinning the ruling as if Brinkema’s first decision never
happened!—
”The written decision leaves open the issue of whether the sale and use of trademarks by search engines and
advertisers to trigger ads that do not contain other parties’ trademarks violates the law,” said Charles Davies,
GEICO’s General Counsel. “In light of this decision, search engines and their advertisers should consider their
potential liability if they intend to use other companies’ trademarks in paid search advertising.”
Geico is throwing potential liability right back at the search engines, ignoring Google’s decisive summary victory on
that point. This is absolute crap, from a company’s whose lawsuit has been mostly crap from the start. Yahoo! bailed
out of this lawsuit early on, in a cowardly and misguided settlement that cost it unnecessary money and forced Google
to fight alone. I hope Google continues with integrity, insisting on a clear-cut and correct precedent that even the
Geico lawyers will understand.
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