cyckV4

210 TRADEMARK INFRINGEMENT
also be interested in and to click upon ads related to other hybrid or electric vehicles,
but not those for Jaguar or Lamborghini. Those who search for Prada are statistically
likely to be interested in other high-end designers, but not in Payless Shoe Source or
Walmart. Having uncovered this pattern of interest, Google’s “Clustersearch”
algorithm facilitates it by automatically constructing a page that features “related”
brands to those for which the consumer is actually searching. The program has been
extremely successful with a high rate of “click through,” demonstrating, as far as
Google engineers are concerned, that they are giving their users the goods and services
for which they really wanted to search. At the top of the page, Google inserts the
following description. “YOU SEARCHED FOR ‘[Trademark Name].’ FOR COM-
PARISON PURPOSES GOOGLE’S “CLUSTERSEARCH” AUTOMATICALLY
LISTS OTHER DESIGNERS AND MERCHANTS WITH RELATED OFFERINGS.
(All listings sole responsibility of posters.)” The latter limitation is included because
Google cannot know exactly what the vendor is selling—only that it was willing to
signal its interest by purchasing the AdWord or, in the case of Google Store, “tagging”
its advertisement with the word in question. (When sellers list goods for sale in Google
Store, the procedure is slightly different than for AdWords. For no additional fee they
can “tag” their post with any keyword they choose—Google does not suggest the tags.
Goods tagged with famous brand names will automatically be featured in Google
searches for those brand names.)
As you can see, Google offers a useful visual cue to each cluster of
advertisements by featuring the logo for the brand in question on the left hand side of
the page. Google’s research has shown that as many as 20% of consumers visually
recognize the logo even when they do not know the actual name of the brand. For
example, the Louis Vuitton interlocking LV pattern shown in Figure One is recognized
as a trademark for “a fancy designer” by many clueless males buying bags as gifts,
though they could not name or spell the actual designer involved. A disclaimer at the
bottom of the page states, “All logos owned by their respective trademark holders,
used here for search-convenience only and not as a signal of endorsement.”
Google Store adds to the existing features on Google Shopping search pages, a
service equivalent to Craigslist or eBay. For a percentage of any sale, Store lists
advertisements of individual sellers, provides a reputational “ranking” system that offers
feedback on reliability, and facilitates payment. The Store listings are displayed
immediately below the highlighted listings. Your predecessor as General Counsel
pondered the design of the system at length and decided that Google could not and
should not attempt to screen or vet listings in order to judge the truth of the advertising
or the authenticity of the product. Indeed, its entire policy is purposefully “hands off.”
“It is just like search!” he said, “We can’t examine every webpage on the Internet for
copyright infringement and we can’t comb through 100 million listings to figure out
who is selling shoddy or counterfeit goods!” Indeed, he says that attempting to screen
listings would appear to offer a guarantee of authenticity that Google could not back up.
Instead of vetting individual listings, Google offers a “takedown” system
through its “Abuse” page for those who believe their intellectual property has been
misused. For example, if a copyright or trademark owner complains about an individual
listing—either in the “featured listings” or in the Google Store—on grounds that it
infringes their rights, Google will remove it. Thousands of such takedown requests are
received and processed every day, though trademark owners complain that it is “like
trying to empty the ocean with a teacup.” Though they do process all these requests,