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American Airlines Cuts & Pastes Its Keyword Ad Lawsuit; Tries Again With Yahoo
from the search-and-replace dept
Last year, we were surprised to see American Airlines sue Google over the fact that competitors were buying keyword-based ads on American Airlines' trademarks. Plenty of similar lawsuits had been brought, but for the most part (in the US at least), search engines are on the right side of the law. First of all, simply buying keywords based on trademarks isn't considered a violation of the trademark. Trademark law doesn't give you total control over the mark, but it is designed to prevent confusing uses. Advertising against a competitor isn't a confusing use by itself, so long as it's clear that the advertiser is different from the trademark holder. Second, and more importantly, even if it was a violation of trademark, the liability should fall on the advertiser, not the search engine. Since the search engine is just a platform, the real claim should be against whoever created and paid for the advertisement.
Given that the search engines have come out on top in many such cases, we were surprised this past summer to see Google and American Airlines settle the case, while keeping the actual details secret. Initially, it appeared that Google had won the settlement, as it was still possible to find those competing ads. However, it's possible that the terms of the settlement hadn't taken effect yet, as a more recent search no longer finds those ads. Even more damning is the news that American Airlines has now basically done a copy & paste and search & replace on the original lawsuit and re-filed it against Yahoo. It even includes the same mistakes as the first lawsuit. As Eric Goldman notes, this is strange for a variety of reasons, including the fact that Yahoo is known to be much more friendly to trademark holders in such cases. However, this certainly suggests that Google may have caved in its settlement, rather than the other way around. If so, that would have been an unfortunate decision by Google, and Google's settlement may only lead to more trademark holders taking their chances on suing as well.
