Google AdSense and Trademark Infringement

When you are married to a patent/IP attorney and you are as interested in technology as I am, you are bound to have some entertaining discussions. Add the fact that I'm a litigator and that I enjoy IP litigation, and the discussions get even more interesting. We were recently debating whether Google and Google.com should be liable for trademark infringement when they allow competitors to use another companies registered trademark in paid keyword advertising. It appears that Sara's position was the position most inline with current jurisprudence on the subject. Via law.com:

In 2006 a computer repair company called Rescuecom sued Google for trademark infringement, claiming that users would be confused by links to ads from competing companies that showed up on searches for Rescuecom's name. On Friday the U.S. Court of Appeals for the Second Circuit agreed with Rescuecom. The court overturned a lower court ruling dismissing the case, finding that Rescuecom could proceed with a trademark infringement suit against Google. Google is represented in the litigation by Michael Page of Durie Tangri Page Lemley Roberts & Kent. Rescuecom relied on in-house lawyer Edmund Gegan.

The Second Circuit followed the majority of district courts that have addressed the issue and concluded that the purchasing of competitors' names or trademarks to trigger keyword ads raises, at the very least, a threshold question of trademark infringement. Will Google ever respond or adjust its AdSense program in light of the increasing number of infringement suits filed against it? We'll have to see.

Credit: The AmLaw Litigation Daily