In early July, the Rosetta Stone launched a lawsuit against Google for trademark infringement through its AdWords program.
These lawsuits are not new, a number of brands have sued Google over the years. Eric Goldman counts 9 similar lawsuits currently making their way through the legal system.
This lawsuit is notable from the prior suits in that it is the first one to include an attack on Google’s recently liberalized trademark policy. This policy allows some advertisers to use trademarked terms in their ad titles and copy.
Since, the ‘Use in Commerce’ test of search ads appears to be increasingly passing, my view is still that the ultimate determination of these lawsuits will be whether a plaintiff can prove that the search advertisements create the likelihood of consumer confusion. I remain surprised at how little research has been published on this issue. It does not appear that the Rosetta Stone is going to move this further along.
The original complaint is available in scanned (non-searchable) format.