by Paul Alan Levy
In a brief filed today, Public Citizen argues to the United States Court of Appeals for the Fourth Circuit that trademark law does not prevent Google from selling keyword advertising for display when Internet users conduct a search using the words “Rosetta Stone” as a search term. We became involved in the case because Rosetta Stone and its supporters seek to deprive consumers of valuable information about Rosetta Stone and its competitors.
Keyword advertising provides a means for those who have things to say about trademarked terms to call their communications to public attention. Because both keyword advertising, and the "sale" of keywords, are commercial speech, the regulation of this practice must be consistent with the First Amendment. Moreover, the only sound objective of trademark law is to protect consumers against confusion about whether goods and services emanate from the trademark holder.
Trademark law needs to protect Internet users who use "Rosetta Stone" as a search term for reasons other than to find Rosetta's own web site. Rosetta Stone's own web site appears prominently among the search results when its name is used as a search term. If Google is held liable just because some Internet users who are looking for Rosetta Stone’s own web site suffer temporary confusion about whether Rosetta is the sponsor of a keyword advertisement, the rights of other speakers to call their sites to public attention, and of other Internet users who don't just want to find Rosetta's site, will be needlessly trammeled.
Finally, we argue that, if any trademark confusion is at issue in this case, it is "initial interest confusion." However, it is easy for Internet users who suffer from initial interest confusion to recover from that confusion – if clicking on a link leads them to a site they don’t want, they can easily click back to the list of search results and try another site. The Fourth Circuit in particular has previously expressed skepticism about that doctrine, and Rosetta should not be allowed to rely on that concept to hold Google liable here.
One problem in preparing the amicus brief was that all of the evidence on which Rosetta Stone's appeal (and Google's response) is based has been submitted under seal -- thirteen volumes of the fifteen volume joint appendix are under seal. We are preparing to intervene in the appeal to ask the court to unseal the secret evidence except insofar as the parties can persuade the court, on a document by document basis, that there is a genuine danger of harm from disclosure of the evidence that outweighs the public's First Amendment right of access to judicial records.