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230 victory for AdWords

By Rebecca Tushnet

Jurin v. Google Inc., No. 2:09-cv-03065-MCE-KJM, E.D. Cal. (filed 3/1/2010)

Jurin sued because Google?s AdWords program suggested ?Styrotrim,? his mark for building material, for certain ads. Allegedly, competitors? ads may appear higher than Jurin?s own site on a result page. He argued that this constituted a form of bait and switch advertising.

Google won dismissal of Jurin?s claims. On his Lanham Act claims, the court concluded that Google had not represented in any way that it produced Styrotrim products. If Jurin was arguing that Google helped facilitate confusion, that was a ?highly attenuated? argument. (And would require a contributory infringement allegation; such claims are very hard to win in trademark cases.) Even accepting the allegation that a ?Sponsored link? might cause confusion, the court found it ?hardly likely? that confusion could occur with several different sponsored links on each page?a consumer wouldn?t believe that each one was the true producer or origin of Styrotrim. Not all courts would dismiss this claim at the pleading stage! It depends on what one thinks the reasonable consumer might conclude, and judicial intuitions on this differ. I think this is the right result, but it also highlights the way that Twombly and Iqbal require plaintiffs to speak to the judge?s prior understanding of the world.

On the false advertising claim, the court found that Jurin had failed to plead that he was in competition with Google, even if Google provides advertising support for others in Jurin?s industry.

Google then used §230 to knock out the remaining non-IP claims (interesting that the court didn?t address §230?s application to §43(a)(1)(B)?I didn?t read the papers, so I don?t know whether Google argued it). Jurin argued that Google?s provision of a keyword suggestion tool meant that Google participated in creating the content of ads. The court disagreed. Google provides ?space? and a service. Suggesting keywords merely ?helps third parties to refine their content,? which is ?tantamount? to the editorial process protected by the CDA. Google provides a neutral tool that only provides options that advertisers could adopt or reject at their discretion, which makes it immune under §230. (Compare the Quiznos analysis?they?re fundamentally incompatible, I think.) The court ended by commenting that AdWords furthers the purpose of the CDA, to encourage ?open, robust, and creative use of the internet.? AdWords simply allows competitors ?to post

their digital fliers where they might be most readily received in the cyber-marketplace.?

Full post as published by 43(B)log on March 11, 2010 (boomark / email).