Comments on: Politics and IP http://www.concurringopinions.com/archives/2007/10/ip_rights_respo.html The Law, the Universe, and Everything Sat, 20 Mar 2010 14:27:28 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: William McGeveran http://www.concurringopinions.com/archives/2007/10/ip_rights_respo.html/comment-page-1#comment-51983 William McGeveran Mon, 15 Oct 2007 22:58:34 +0000 http://www.solove.org/archives/2007/10/politics-and-ip.html#comment-51983 Risk of trademark liability for Google because of a use by an advertiser is quite remote. First, a use would have to be infringing, and not a mere reference or comparative advertising. Senator Collins' ad is safe on this ground. Most ads will be. Second, it would have to be secondarily liable, and the legal status of a search engine in those circumstances isn't clear yet (as the ongoing keyword advertising cases and their split decisions show). Besides, if Google is going to be secondarily liable, it isn't clear that a policy saying they *would have* withdrawn the ad upon request of the markholder will help them avoid that liability if the markholder didn't take the initiative to make the request. It may be that some clearer legal exemption could help here. But Google is not exactly shy about facing down litigation in other contexts. Google has simply *chosen* in this policy to obey requests from markholders even though most will have very slight legal merit and expose Google to very slight legal risk. This is a business decision by Google that cannot be fully explained by law. Risk of trademark liability for Google because of a use by an advertiser is quite remote. First, a use would have to be infringing, and not a mere reference or comparative advertising. Senator Collins’ ad is safe on this ground. Most ads will be. Second, it would have to be secondarily liable, and the legal status of a search engine in those circumstances isn’t clear yet (as the ongoing keyword advertising cases and their split decisions show).

Besides, if Google is going to be secondarily liable, it isn’t clear that a policy saying they *would have* withdrawn the ad upon request of the markholder will help them avoid that liability if the markholder didn’t take the initiative to make the request.

It may be that some clearer legal exemption could help here. But Google is not exactly shy about facing down litigation in other contexts. Google has simply *chosen* in this policy to obey requests from markholders even though most will have very slight legal merit and expose Google to very slight legal risk. This is a business decision by Google that cannot be fully explained by law.

]]> By: anon http://www.concurringopinions.com/archives/2007/10/ip_rights_respo.html/comment-page-1#comment-51982 anon Mon, 15 Oct 2007 10:22:59 +0000 http://www.solove.org/archives/2007/10/politics-and-ip.html#comment-51982 Presumably, Google gets thousands if not millions of requests for using trademarks in its ads. It cannot listen to each and every person coming up with their case on why their trademark use is non-infringing, and make a legal call. So the safe-harbour will either be complete--internet search engines have immunity for claims of secondary trademark infringement--or ineffective. Chances of such complete immunity I think are slight (and not necessarily a good idea, either). Presumably, Google gets thousands if not millions of requests for using trademarks in its ads. It cannot listen to each and every person coming up with their case on why their trademark use is non-infringing, and make a legal call. So the safe-harbour will either be complete–internet search engines have immunity for claims of secondary trademark infringement–or ineffective. Chances of such complete immunity I think are slight (and not necessarily a good idea, either).

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