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Contributory Infringement 209
You have recently been appointed as General Counsel for Google, which is facing a
number of legal problems. Early this year, Google began a new service called Google
Store. Google Store is designed to compete with eBay, Craigslist, uBid and other
consumer-to-consumer and small business-to-consumer online shopping sites. These
sites allow sellers who have goods or services to sell to “list” them online. The sites
provide convenient advertising and payment options, often in return for a percentage
of the sale. “Google Store will allow us to leverage our core competency in search and
the synergies of our global reach to provide the world’s greatest integrated search and
shopping Web 2.0 experience, all with a touch of Google awesomeness” announced
Sergey Brin, one of Google’s founders.
The exciting thing about Google Store is the way it is integrated into the Google
search process. The standard Google search page has a number of hyperlinks along
the top—Web, Images, Maps, Shopping and Video being the most prominent. If a user
clicks on “Images,” for example, her existing search is confined only to pictorial
search results. “Shopping” will yield only products for sale and so on. In order to
understand the way listings are generated on the Shopping page, it is necessary to
explain two of Google’s programs—Google AdWords Featured Listings (AdWords)
and Google Store (Store).
AdWords allows advertisers to “purchase” certain words or phrases. When those
words or phrases are used by someone searching Google, the advertiser’s chosen
advertisement is featured on top of the search result, inside a yellow highlighted box.
(An example of a Google Shopping search is reproduced above.) Google chooses to
include as AdWords available for purchase both simple descriptive terms (“designer
bags,” “discount travel”) and trademarked phrases or words. The trademark owner is
free to “purchase” its own name as an AdWord, as Louis Vuitton and Prada have
apparently done in the featured page. In addition, some of the advertisements are from
vendors who wish to resell the item in question. For example, vendors who claim to be
selling second hand Louis Vuitton or Prada bags could “purchase” the words ‘Louis
Vuitton’ or ‘Dior bags’ and would then have their advertisements appear in the
highlighted box when someone searched for that word or phrase. Some may buy the
trademarked word for reasons entirely unrelated to its trademark status, as the person
who purchased “Hermes” in order to sell a “weird old Greek God Belly Fat Diet” has
apparently done. Finally, competitors to the trademark owner can purchase the
trademarked AdWord on the theory that someone searching for, say, Louis Vuitton,
might be interested in the wider category of designer bags. As you can see, Coach has
done this with several of the designer bags featured on the page.
Above the yellow highlighted advertisements is a header that says “Ads related
to X.” Next to it appears an information icon: If that icon is clicked, the following
message appears: “Google is not responsible for these listings and does not warrant
their accuracy. If you believe this advertisement makes inappropriate use of your
intellectual property, please go to our “Abuse” page.” As you can see, there are
additional warnings at the top and bottom of the page that express in different language
the point that Google does not screen or endorse the listings.
Please examine the layout of the search page included as an illustration before
this problem. The user initially searched for Louis Vuitton handbags and so that is the
first result shown. In addition, Google’s famous search technology has revealed
“clusters” of trademarked names. Those who search for “Prius” are statistically likely