TechLaw

The disappointment is palpable at Prof. Eric Goldman's Technology & Marketing Law Blog over the district court's failure to say anything (other than "denied") about the merits of Google's motion to dismiss American Airline's trademark claim over Google's sale of trademarked terms as search keywords. Prof. Goldman would have liked a clear statement from the court that the sale of trademarked term as a search keyword is not a commercial use of the mark.

Also missed was an opportunity to hear the court's views on Google's argument that Section 230 of the Communications Decency Act immunizes Google from all of American Airline's state-law claims. Google also claims CDA Section 230 immunity to American's federal Lanham Act claim for false representation because, Google argues, a federal false representation claim is not an intellectual property claim; thus, it doesn't fall within CDA Section 230's exception for intellectual property claims.

CDA Section 230 immunity is the "Where's Waldo" of liability defenses: if you look hard enough you can find it. As far as I can tell Google has not claimed CDA immunity in any prior lawsuits (Geico, Rescuecom, American Blind) challenging its sale of trademarks to trigger advertising for the mark owner's competitor. In the American Airlines case, however, Google is claiming that the advertising content (links and text) triggered by searches on American's marks are third-party content -- similar to a comment on a blog or a message on an online bulletin board. Holding a provider or user of interactive computer services liable for third party content is forbidden by CDA Section 230. "American's complaint is an attempt to impose liability on Google for ads created and placed by third parties," Google argued in its motion to dismiss. "This admitted attempt to impose liability on Google as a publisher of third-party content is explicitly prohibited by the CDA."

The court's answer to that argument would have made for interesting reading.

The case is American Airlines Inc. v. Google Inc., No. 07-cv-487 (N.D. Tex. Oct. 24, 2007).