Yet another trademark owner has gone to war over Google's keyword advertising. But this time it's a name everyone knows: American Airlines.
Yesterday, the world's largest airline slapped a federal suit on the world's largest search engine, claiming that Google's cash-cow of an ad system infringes on American's rather extensive trademark portfolio.
"Some individuals and entities attempt to take advantage of consumers by marketing their products or services using the brands of others," reads a filing with the US District for the Northern District of Texas. "This lawsuit involves exactly such a situation - efforts by certain companies to free ride on American Airlines' brands through use of Google technology."
Google is to blame, the suit argues, because it allows third-party businesses to piggy-back their ads on search engine keywords that violate American Airlines trademarks - like "American Airlines," "AA," and "A A."
Close to a dozen companies have filled similar suits against Google, including Geico and American Blinds, but none can match the profile of an American Airlines. "Geico is a pretty well known brand," Santa Clara University law professor and tech law blogger Eric Goldman told The Reg, "but American Airlines is one of those highest-echelon brands, one of the brands that almost everyone is familiar with." And American Airlines has lots of money to pay its lawyers.
American's argument is, shall we say, multi-faceted. On one level, the airline claims that Google is "directly" infringing its trademarks, that the search engine is using intellectual property owned by American Airlines to rake in cold, hard cash.
"The law doesn't really distinguish between me slapping a competitor's brand on my knock-off good and Google offering the ability to make a keyword match on its database," Goldman told us. "The fact that Google is taking money for having made an association on someone's trademark could, in theory, meet the trademark statute standards" - i.e. break the law.
What's more, the suit argues, Google is actually suggesting that advertisers purchase keywords that violate American Airlines trademarks. "Google has a sandbox where it suggests what keywords [advertisers] should buy and it will routinely suggests third-party trademarks," Goldman explained. "If you go onto the site and say 'Hey, I'm thinking about advertising in the travel business,' it will say 'Have you considered the following keywords' - and American Airlines trademarks may be on that list."
The airline makes a boatload of additional claims - with some holding more water than others. At one point, it gets huffy because Google doesn't allow keyword matches on its own trademark, and it complains that when you click on links related to American Airlines trademarks, you're taken to sites that sell both American Airlines tickets and tickets from competitors. You might as well complain that your local grocery store is selling both Coke and Pepsi even though it ran a Pepsi ad in the local paper.
So far, no such suit has actually gone to jury trial, but the American Blinds case is headed that way, and Google ended up settling with Geico. Basically, US courts are in disagreement over whether keyword advertising actually violates trademarks. "About half the courts who've opined on the question have said 'Yes, it does,' and about half have said 'No,'" Goldman said.
Goldman believes the American Airlines suit is doomed to fail, but you can bet the company will take it the distance. This is the word from those well-paid lawyers: "American Airlines does not bring this lawsuit lightly." ®