EFF Enters Google "Sponsored Links" Trademarks Dispute

February 23, 2007

Yesterday, The Electronic Frontier Foundation (EFF) asked the U.S. 2nd Circuit Court of Appeals to uphold a ruling allowing anyone to purchase Google's "sponsored links" tied to trademarks.

The EFF argued that the practice is legal under trademark law as well as provides a vital means for online speakers to connect with audiences on the Internet.

The EFF notes that Google's "sponsored links" feature allows customers to purchase advertisements attached to certain search terms. When a Google user types those terms into the search engine, the sponsored links appear along with the search results.

However, a company named Rescuecom filed a lawsuit against Google over the program, claiming that selling sponsored links for the term "Rescuecom" infringed its trademark.

In an amicus brief filed with the appeals court EFF maintains that the sponsored links are not an infringing use, and in fact promote a vibrant public sphere by helping online speakers reach a broader audience. An example cited in the brief is that of "The Coalition of Immokalee Farmworkers," a group critical of McDonald's business practices. The coalition bought sponsored links attached to searches for "McDonald's" in order to stimulate debate and mobilize support.

"The Internet has brought together speakers of many kinds -- some competing with trademark owners, others criticizing them, still others simply referring to them while discussing other subjects or products," said EFF Staff Attorney Corynne McSherry. "Services like Google's 'sponsored links' help people with something to say reach those who might be interested in hearing it."

Rescuecom has asked the court to hold that trademark law regulates virtually any use of search keywords that are also trademarks. This would give trademark holders a legal sword to wield against critics and competitors, as well as the intermediaries upon which those critics and competitors rely to spread their message. But the EFF believes that courts have historically taken care to ensure that trademark restrictions do not allow markholders to interfere with Constitutionally-protected free speech.