Google Can Be Sued for Trademark Infringement for its Ad Words Program

The Second Circuit recently reversed a district court's dismissal of an action for trademark infringement, false designation of origin, and dilution under the Lanham Act surrounding Google’s Ad Words and/or Ad Sense programs.

In Rescuecom Corp. v. Google, Inc. Plaintiff Rescuecom alleges trademark infringement against the search engine giant stating that Google is violating trademark law and Rescuecom’s rights by allowing its competitors to bid on its trademark to receive placement of their own competing ads when a user of the search engine searches for Rescuecom.

Although the district court granted a motion to dismiss stating, in essence, Google’s actions could not amount to “use” under the Lanham Act and, accordingly, could not constitute infringement the Second Circuit disagreed.

In short, the Second Circuit concluded that where plaintiff's allegations that Google's recommendation and sale of plaintiff's mark to its advertisers triggers the appearance of plaintiff's advertisements and links in a manner likely to cause consumer confusion when a Google user launches a search of plaintiff's trademark, such complaint adequately pleads a use in commerce and is a proper claim under the Lanham Act.

The case has now been remanded for actions consistent with the Second Circuit’s opinion. More will surely follow.

The Trademark Company