Rosetta Stone, a foreign language education provider, filed suit in the Eastern District of Virginia against Google last week for allegedly infringing on the company's trademark. The conflict arose over Google's AdWords program which allows third parties to purchase keywords for advertising purposes. The result is that when a consumer runs a Google search for "Rosetta Stone", their search results will display paid advertisements of competitors as "sponsored links".
Rosetta Stone claims this practice constitutes an unauthorized use of their trademark and is being marketed in a way that is likely to confuse consumers, causing a financial strain on the company. "Google and its advertisers benefit financially from and trade off the goodwill and reputation of Rosetta Stone without incurring the substantial expense that Rosetta Stone has incurred in building up its popularity, name recognition and brand loyalty," Rosetta general counsel Michael Wu said in a statement, according to the Washington Post.
Google, on the other hand, is arguing their advertising method is actually a benefit to consumers because it provides a multitude of options and price comparisons. Google compares itself to a grocery store saying, "it’s reasonable to expect a range of brands on any shelf in a grocery store, providing users on Google with more than one option when they search for a brand name or other trademark helps them to find the best product at the lowest price."
This case raises an issue of "initial interest confusion" when the "sponsored links" pop up with the search result. Initial interest confusion occurs where a consumer is attracted to a website or product because they believe it to be affiliated with a particular trademark. Internet banner ads and the selling of "keywords" for advertising have become hot topics for debate and resulted in a split of judicial opinions. In a 2005 case, GEICO v. Google, the Eastern District of Virginia found that GEICO failed to produce sufficient evidence to establish that advertisements that do not reference GEICO’s trademarks in their text or headings violate the Lanham Act, even though Google’s advertising program enables those ads to appear when a user searches on GEICO’s trademarks. The same rationale applies here, and unless an ad clearly misrepresents an association with Rosetta Stone and their products where there isn't one, then Google's use of the trademark should be protected. Most consumers are aware that sponsored links are not affiliated with the trademark search term; and therefore, there is little likelihood of confusion. Additionally, Google selling ad space on particular search term pages to competing vendors does have a serious public benefit in price comparison because such a practice encourages fair market competition among big business. The Google AdWord program could be one of the most effective tools on the Internet helping protect consumer interests.
