California Court Enjoins Canadian Court’s Global De-listing Order to Google as Contrary to CDA

6 12 2017

In a decision that sets up a potential international comity showdown, a California district court granted Google’s request for a preliminary injunction preventing enforcement in the U.S. of a Canadian court order that compelled Google to globally de-list certain search results of a former distributor that had allegedly used its websites to unlawfully sell the defendant Equustek Solutions’s (“Equustek”) intellectual property. (Google LLC v. Equustek Solutions Inc., 2017 WL 5000834 (N.D. Cal.  Nov. 2, 2017)).

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The content in this post was found at https://newmedialaw.proskauer.com/2017/11/09/california-court-enjoins-canadian-courts-global-de-listing-order-to-google-as-contrary-to-cda/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Interesting Tidbits From FTC’s Antitrust Win Against 1-800 Contacts’ Keyword Ad Restrictions

30 11 2017

Over the course of about a decade starting in 2004, 1-800 Contacts entered into over a dozen settlement agreements with competitors, most of which mutually restricted both parties from buying keyword ads triggered to their competitor’s trademarks and sometimes requiring the use of negative keywords. The FTC challenged this practice as anti-competitive via the FTC’s administrative adjudication process. In a behemoth 215 page opinion peppered with annoying redactions, the ALJ agrees with the FTC. The opinion’s summary:

Complaint Counsel has met its burden of proving that the Challenged Agreements unreasonably restrain trade in violation of Section 5 of the FTC Act. Contrary to Respondent’s argument, FTC v. Actavis, 133 S. Ct. 2223 (2013), is not authority for the proposition that trademark settlement agreements are immune from antitrust scrutiny.

The evidence in this case demonstrates that the advertising restraints imposed by the Challenged Agreements cause harm to consumers and competition in the market for the sale of contact lenses online. This is sufficient to establish Complaint Counsel’s prima facie case that the agreements are anticompetitive. The evidence fails to prove that the Challenged Agreements have countervailing procompetitive benefits that outweigh or justify the demonstrated anticompetitive effects of the Challenged Agreements. Accordingly, the Challenged Agreements violate Section 5 of the FTC Act.

This opinion is chock-full of goodies. Normally I’d recommend reading the whole thing. However, at a hefty 215 pages, it would take you a long time to do so. Here are some of the highlights I saw.

 

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Case citation: In the Matter of 1-800 Contacts, Inc., Docket No. 9372 (FTC Off. of Admin. L. Judges Oct. 27, 2017)

Case library: The FTC maintains a page with all of the public filings in this case. Here’s a selected library of materials:

 

The content in this post was found at http://blog.ericgoldman.org/archives/2017/11/interesting-tidbits-from-ftcs-antitrust-win-against-1-800-contacts-keyword-ad-restrictions.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Amazon Defeats Lawsuit Over Its Keyword Ad Purchases–Lasoff v. Amazon

3 02 2017

Lasoff owns Ingrass, which makes artificial turf. He claims he’s losing business to “cheaper, counterfeit” versions of Ingrass. (The opinion uses the term “counterfeit,” though it probably means knockoffs). He objects to the fact that Amazon runs keyword ads for “Ingrass” at the search engines and in promotional emails that are algorithmically programmed for remarketing (i.e., promoting products the email recipient viewed on Amazon but didn’t buy). The promotional email ad copy comes from third party sources. Prospective customers who saw these ads for “Ingrass” were directed to the Amazon product pages containing listings from the alleged counterfeiters.

Section 230

Citing the Ninth Circuit’s ccBill v. Perfect 10 ruling, the court cleans out all of the state law claims (unfair competition, state trademark infringement, tortious interference, negligence and unjust enrichment) due to Section 230. The court says:

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Case citation: Lasoff v. Amazon.com, (W.D. Wash. Jan. 26, 2017)

 

The content in this post was found at http://blog.ericgoldman.org/archives/2017/02/amazon-defeats-lawsuit-over-its-keyword-ad-purchases-lasoff-v-amazon.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



More Evidence Why Keyword Advertising Litigation Is Waning

4 01 2017

A venerable and classic Internet Law question: when a consumer uses a trademark as a search term, what are they looking for? If they are seeking the trademark owner–and only the trademark owner–then competitive keyword advertisers may encroach on the trademark owner’s goodwill and “steal” the trademark owner’s customers (and the search engine/ad network may be profiting from this “theft”). In contrast, if consumers have heterogeneous search objectives when using a trademarked search query, trademark law would overreach–in ways that would significantly harm social welfare–if it prevented ads from parties other than the trademark owner.

Nearly a decade ago, I argued–without empirical proof–that searchers had heterogeneous search objectives when using trademarks in search queries, which made competitive keyword advertising both permissible and desirable. Since then, some empirical studies have supported this argument, especially the Franklyn/Hyman study; see also the Tucker/Bechtold study.

A new empirical study, Jeffrey P. Dotson et al, Brand Attitudes and Search Engine Queries, 37 Journal of Interactive Marketing 105 (2016), provides further support for this conclusion. The study is based on a rich dataset: a time-series of actual Google search queries in the cellphone and automotive categories by opted-in consumers. The authors don’t consider the legal questions, but their conclusions buttress the perspective that consumers have heterogeneous motivations when they use trademarks in their search queries.

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The content in this post was found at http://blog.ericgoldman.org/archives/2016/12/more-evidence-why-keyword-advertising-litigation-is-waning.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



FTC sues 1-800 Contacts for attacking competitors’ search ads

13 08 2016
The Federal Trade Commission has sued online retailer 1-800 Contacts, saying the company illegally restrained competitors from buying search advertisements. It’s a dramatic move that could mold the shape of online trademark law for years to come.

 

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The content in this post was found at http://arstechnica.com/tech-policy/2016/08/ftc-sues-1-800-contacts-for-attacking-competitors-search-ads/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Another Murky Opinion on Lawyers Buying Keyword Ads on Other Lawyers’ Names–In re Naert

18 11 2015

Technology & Marketing Law Blog

October 3, 2015

Eric Goldman

I recently posted a co-authored article, Regulation of Lawyers’ Use of Competitive Keyword Advertising, discussing lawyers’ use of competitive keyword ads triggered by other lawyers’ names. That article examines both IP laws and attorney rules of professional conduct and explains why buying lawyers’ names for competitive keyword ads is permissible and desirable. If you haven’t read it, it will be a helpful foundation for the rest of this post.

In light of our paper, a new opinion from South Carolina Supreme Court left me scratching my head. The case reached the Supreme Court as an “Agreement for Discipline by Consent” between the state bar counsel and Zachary Naert–basically, a settlement agreement. The Supreme Court approved the settlement in an opinion with scant analysis.

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The content in this post was found at http://blog.ericgoldman.org/archives/2015/10/another-murky-opinion-on-lawyers-buying-keyword-ads-on-other-lawyers-names-in-re-naert.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Do Online Retailers’ Search Results Constitute Trademark Infringement?

22 09 2015

Since the inception of the search engine, trademark owners, advertisers, search engine providers, and the courts have struggled with the issue of the use of third-party trademarks in keyword advertising and search returns, and whether such trademark use is likely to confuse consumers when they are searching for information regarding a particular brand. Despite an array of holdings on this issue over the years, following the 2011 decision in Network Automation, Inc. v. Advanced System Concepts, Inc., the Ninth Circuit and other courts have generally held that the potential for “mere diversion” of a consumer caused by the use of a third party’s trademark in connection with sponsored keywords or search results does not constitute trademark infringement unless a trademark owner can demonstrate that particular search returns or sponsored keyword advertisements are likely to cause confusion based on the specific use or presentation of a trademark in a search return.

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The content in this post was found at http://www.ipwatchdog.com/2015/09/20/do-online-retailers-search-results-constitute-trademark-infringement/id=61807/and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Keyword Ad Lawsuit Isn’t Covered By California’s Anti-SLAPP Law

24 08 2015

[note: ed– there’s another tricky issue lurking here, that Prof. Goldman doesn’t mention: even though it’s not DIRECTLY applicable, the more that courts say that search terms are “commercial,” the more likely that trademark litigation will hinge on whether search terms are a “use in commerce.” If/when courts settle that in favor of “yes, they are,” the Google-type auction model might be in real trouble. To his credit, Prof. Goldman provides a long list of relevant cases at the bottom of this post]

August 22, 2015 · by 
The plaintiff, Los Angeles Yellow Cab, and defendants compete in the taxi industry. The defendants bought keyword ads at the search engines, such as the following triggered by the search “Yellow Cab Los Angeles”:

Yellow Cab Los Angeles—Call 800–521–8294 or Book Online!
www.lataxi.com
Our Cabs get you there Fast & Safe.

The plaintiff claimed this ad constituted false advertising (per B&P 17200 and 17500 and the Lanham Act) because the phone number and website misled consumers to contact one of the defendants instead of Yellow Cab Los Angeles.

The defendants moved to strike the lawsuit per California’s anti-SLAPP law.

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Case citation: L.A. Taxi Cooperative, Inc. v. Independent Taxi Owners Association of Los Angeles, 2015 WL 4970092 (Cal. App. Ct. Aug. 20, 2015)

 

 

 

 

 

 

The content in this post was found at http://blog.ericgoldman.org/archives/2015/08/keyword-ad-lawsuit-isnt-covered-by-californias-anti-slapp-law.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Trademark Ruling Over Amazon’s Internal Search Results–MTM v. Amazon (Forbes Cross-Post)

20 07 2015

When a consumer asks a retailer for a product the retailer doesn’t carry, how should the retailer respond? A recent federal appellate court opinion suggested that Amazon.com gave the wrong answers to consumers searching for a watch brand that it didn’t carry.

The Ruling

Multi-Time Machine makes high-end military-style watches under brand names including “MTM Special Ops.” MTM tightly controls its distribution channels. As a result, Amazon.com doesn’t carry MTM’s watches. When Amazon consumers searched for “MTM Special Ops Watches” in Amazon’s internal search engine, consumers were provided a list of “aesthetically similar, multi-function watches manufactured by MTM’s competitors” such as Luminox and Chase-Durer, but the search results page did not expressly say that Amazon doesn’t carry MTM watches:

Amazon’s disclosures on its internal search results page differ from competitors Buy.com and Overstock.com, both of whom “clearly announce that no search results match the ‘MTM Special Ops’ query and those websites do not route the visitor to a page with both MTM’s trademark ‘MTM Specials Ops’ repeatedly at the top and competitors’ watches below. Their pages show the search query playback but then forthrightly state that no results for the ‘MTM Special Ops’ search query were found, and then list competitors’ products.”

MTM claimed that Amazon’s search results constituted trademark infringement. The district court ruled for Amazon, saying that the search results page didn’t create actionable consumer confusion. In a split vote, recently the Ninth Circuit Court of Appeals reversed, holding that Amazon’s search results presentation might constitute trademark infringement and sending the case to the jury.

The majority opinion focuses on a much-criticized trademark doctrine called initial interest confusion. The Ninth Circuit has had a dozen or so cases addressing initial interest confusion, and its handling of the doctrine has vacillated wildly. In 1999, the Ninth Circuit adopted an exceptionally (and, in my opinion, unreasonably) overbroad definition of the concept. This led to a series of tortured and inconsistent rulings until 2011, when the Ninth Circuit adopted a more constrained definition that virtually killed the doctrine.

Case citation: Multi Time Machine, Inc. v. Amazon.com, Inc., 2015 WL 4068877 (9th Cir. July 5, 2015)

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The content in this post was found at http://blog.ericgoldman.org/archives/2015/07/troubling-trademark-ruling-over-amazons-internal-search-results-mtm-v-amazon-forbes-cross-post.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Appeals court: Amazon can’t dodge trademark suit over watch search results

10 07 2015

On Monday, a divided panel of appeals judges ruled that Amazon will have to face a trademark lawsuit because of online search results it published, which point to the competitors of a high-end watchmaker.

The US Court of Appeals for the 9th Circuit published its opinion (PDF) in Multi Time Machine v. Amazon.com today, reversing a lower court decision that held in favor of Amazon. In the original case, Multi Time Machine (MTM) sued Amazon saying its search results were confusing. The case now returns to the district court in Los Angeles for further proceedings.

Multi Time Machine may end up being an important outlier in technology law, since it approves a trademark owner bringing suit over search results. Many companies have filed lawsuits challenging the practice of “keyword advertising” by suing competitors or search engines themselves.

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The content in this post was found at http://arstechnica.com/tech-policy/2015/07/appeals-court-amazon-cant-dodge-trademark-suit-over-watch-search-results/and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.