Google’s advertising service, called “AdWords,” allows companies to purchase keywords which, when entered in Google’s search engine, bring up that company’s advertisement in a separately demarcated “sponsored links” portion of a Google search results page. For example, a search in Google on the keywords “roofing materials” produces a Google search results page with a listing of sponsored links advertising companies that sell roofing materials. Many entities have brought suit against Google over its AdWords policy (e.g., GEICO, American Airlines, American Blind and Wallpaper Factory, Flowbee International, Inc., Rescuecom Corp, Rosetta Stone, Stratton Faxon). Nevertheless, Google’s AdWords service remains in full force and effect today. Google even recently liberalized the policy in the U.S. to allow some sponsored link ads to use trademarks in the ad text, even when the advertiser does not own the trademark or have express prior approval from the trademark owner to use the trademark.
When the owner of Firepond, a software company in Texas, entered the company’s trademark into Google’s search engine, its competitors’ ads appeared in the sponsored links section of the Google search results page, because those competitors had purchased the keyword “firepond” through Google’s AdWords service. Firepond filed suit, styled FPX, LLC (d/b/a Firepond) v. Google, Inc., in the U.S. District Court for the Eastern District of Texas on May 11, 2009, alleging that Google’s policy violates the Lanham (Trademark) Act and Texas common law. Firepond filed its lawsuit on behalf of what it claims is a class of similarly situated Texas trademark owners. On May 14, 2009, a similar class action suit was filed, also in the U.S. District Court for the Eastern District of Texas, styled John Beck Amazing Profits, LLC v. Google, Inc. This second suit alleges a nationwide class of similarly situated trademark owners. We will publish an update in a future issue of Expect Focus should either case obtain class certification.