A federal district judge in California has rejected a motion to dismiss in a trademark infringement suit against Google.
The complaint, brought by CYBERsitter LLC, a company that makes a program that filters content on the Internet, alleges Google and a rival company used “a bait and switch strategy to confuse consumers into purchasing a competing product.”
The rival company, ContentWatch, produces a product called Net Nanny, which is similar to CYBERsitter. The case centers around the use of AdWords, a paid placement advertising service offered by Google that is tied to specific search terms. When specific keywords are entered into the search field, it yields a sponsored link which appears above the search results. According to the complaint, ContentWatch allegedly used AdWords placement of the search term CYBERsitter and the like to direct customers to its own product.
“Defendant Google has willfully participated in, facilitated and encouraged these acts for its own financial gain,” alleged the complaint filed in the Central District of California.
In its motion to dismiss, Google attorneys wrote that the federal Communications Decency Act “protects service providers such as Google from liability for claims precisely like those alleged here, predicated upon publication of content created by third parties.”
But U.S. District Court Judge Ronald Lew disagreed. On October 24, Lew denied Google’s motion to dismiss on the justification that the Ninth Circuit has clarified that if a service provider contributes to the development of illegal content, then it is not entitled to the immunity granted under the Communications Decency Act.
“We are very pleased with Judge Lew’s decision, which takes a significant step towards defining the scope and contours of CDA immunity with respect to Google and others,” Gregory Fayer, founding partner of Fayer Gipson, said in a statement to The National Law Journal. “We look forward to moving ahead with the case, and ultimately vindicating our client’s rights against these false and misleading ads that were facilitated and encouraged by Google’s sale of the right to use CYBERsitter’s trademarks without CYBERsitter’s authorization.”
Quinn Emanuel Urquhart & Sullivan partner Margaret Caruso, who repres ents Google, did not respond to a request for comment.
Contact Matthew Huisman at firstname.lastname@example.org.