I'm putting that one on the board, too, as a contender for Not The Best-Argued Case of the Day.
The trump card in deciding whether or not the case can go to trial is whether there is potential for confusion between companies or products. This led the three-judge panel to discuss whether a sponsored ad appearing next to organic results was different from placing Pepsi next to Coke on the store shelf; or different from phoning directory assistance, asking for a company number and being given a competitor's number instead; or different from if you asked the pharmacist for Advil and were given Aleve.
Grimmelmann's account borders on hilarious. Here's an excerpt:
[Judge Guido Calabresi asked] What if someone types in something at an automated drug counter and a box comes out, half Advil and half Aleve? The specific request, said [Google attorney Michael] Page, made the response an implied representation. Thus, Calabresi asked, [what] is the difference between that and Google? What would be difficult about saying, “These are some other things, not directly what you asked for?” Ah, Page replied, but that’s what we do with our “Sponsored Links” text. That’s when the trap snapped shut.
Hmmm. I know: What if I bought a box of Cheerios and there was Grapenuts inside? You know what Grapenuts does to my teeth? What if I confuse my Ex-Lax with my Viagra? Will I know if I'm coming or going?
Oh come on. It was wide open.
Unfortunately for everybody, this is kind of important. It seems unduly restrictive of not only speech but also of the free market to disallow competition (or competing viewpoints, if it helps solidify it for you) from appearing in the search results. What Rescuecomm and other companies want is not in the interests of protecting their trademark, but in eliminating Google's ability and right to inform consumers of other options and opinions.
Fortunately though, this comedy of judicial errors doesn't decide the case once and for all. It's just a hearing to see if there's merit to overturn a dismissal. If so, Rescucomm gets a trial and Google's legal team gets another chance to destroy a specious argument.
No comments yet. Be the first to comment!