Google Files for Dismissal of American Airlines Adwords Trademark Suit

By Dave Wieneke | in Advertising, Search engines, Trademark law | 14 Oct 2007 | No Comments

Google’s motion is an attempt to scrape away the assorted claims made by American before any stick legally or in public opinion. This article summarizes the complaint, the response, and presents perspectives which may be useful in considering this case.

The complaint:In August, American Airlines filed a complaint against Google in U.S. District Court in Fort Worth. The charges were broad, with claims including: direct, contributory and vicarious trademark infringement, false advertising, unfair competition, misappropriation of brand, and tortious interference with contract.

The core of the case is that Google allowed companies other than American Airlines to buy advertising triggered by the use of words and phrases, some of which are trademarked by American. Their claim of tortious interference rests on an assertion that Google allegedly knew that American’s distributors weren’t supposed to buy American’s trademarks as keywords, and that they should have prevented what American did not.

The response: In its motion to dismiss, Google said placing the sponsored ads on the site was no different than drugstores placing generic ibuprofen next to Advil, or when a consumer who buys Tropicana orange juice gets a coupon for Minutemaid.

Opinions & Perspective:

1.) Diversion of trade cases frequently cost more than what they seek to remedy.
This case could expose American to both loss of the case and public embarrassment if in the course of the matter Google produced records of American’s keywords purchases. As a large organization it is imaginable that their own key word purchasing may occasionally have targeted competitor’s keywords. Finding such data is what’s made Google successful in search, and it could turn this case in its favor.

2.) American should enforce its program with its own affiliates.
It would make better sense for American to charge breach of contract against their affiliates who misappropriated their mark, rather than to assert that Google interfered with their agreement with the affiliates. Its likely the Google would have a claim against the affiliates for violating the terms of their advertising agreement with Google.

3.) Its ironic.
Marty Schwimmer, host of the Trademark Blog, notes in ClickZ, that he’s used Amiercan Airlines many times to explain the need for context in understanding key word use.

“If I said I went to Europe on American Airlines, you would understand I meant the brand,” he noted. “However, it’s feasible somebody looking for information on carriers operating in the United States could do a search for ‘American airlines’.”

“It shows you the challenge and the confusion here,” said Schwimmer.