Tuesday, September 18, 2007

What do you think?

As recently stated in the online blog Lexology, American Airlines recently sued Google for trademark misappropriation. See American Airlines, Inc. v. Google, Inc., No. 4-070V-487-A (N.D. Texas, Aug. 16, 2007). In its complaint, Amercian alleges that Google's policy of allowing other companies to display paid links to their sites when Google users enter American's trademarks as search terms, such as searching for "AA.com" or "American Airlines", is illegal.

Under the law, there must be a liklihood that a consumer will be confused between two marks for trademark infringment to occur. Some recent court descisions have held that no confusion is likely to occur as consumers are aware when they are choosing a company with a different name. Additinally, some decisions have recognized that the purchase of a trademarked key word may not constitute legal "use" of the trademark in commerce.

American counters these arguments in its recent complaint by allegeng that "Google and its advertisers... benefit financially from and trade off American Airlines' goodwill and reputation without incurring the expense that American Airlines has incurred..."

Google's response to these types of allegations in the past has included an analogy to retail stores. Retail stores, Google states, are allowed to place competing items next to each other in order to attract customers. Why shouldn't this policy also apply online?

As a trademark attorney, I understand the value of a trademark and believe that companies should not be capable of trading off on the goodwill associated with marks without compensation to those companies. However, as a consumer, I enjoy having the freedom to enter a company's name in a search engine and receive easy links to that company's competitors. There are multiple layers to this argument, including freedom of speech issues and my personal belief that companies such as American should feel confident that their products are better than their competitors' products, and therefore should welcome the competition. If their competitors are providing different services, then American shouldn't have a problem with it or it should begin to provide those services.

However, I'm curious - what do you think? I'd love to hear if any of you have any comments on this as this is one issue that is not going away.