Google’s decision to settle GEICO’s trademark infringement case, which challenged certain kinds of keyword advertising, leaves the law on the subject somewhat unsettled. (For a discussion of keyword advertising, the potential risk it poses to any company using that type of advertising and how to best insure that risk, see our previous post on the subject.)
What did we learn from GEICO’s case against Google? First bear in mind that the decisions were made at the district court level, in the U.S. District Court for the Eastern District of Virginia. Since the decisions were in a trial court, rather than an appellate court, they may be persuasive to another court but they are not binding.
The decisions? Judge Leonie Brinkema found that GEICO had not proven that allowing an advertiser to have their ad appear when a user types a competitor’s trademark into the query box of a search engine was likely to confuse consumers. Such proof is a key element in establishing a trademark violation.
The judge found that GEICO did establish a likelihood of confusion if the competitor’s trademark actually appeared inside the advertisement that came up with the query results.
The case did not establish whether Google, the advertiser or both would be liable when the competitor’s trademark actually appeared in the advertisement.
For the Insurance Journal’s story about the settlement, see Google Settles Rest of Geico Suit.For the news.com story, see Geico, Google settle lawsuit.