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Rosetta Stone Vs Google, Sponsored Listings, Case Dismissed

     
2:39 pm on Apr 30, 2010 (gmt 0)

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Rosetta Stone Vs Google, Sponsored Listings, Case Dismissed [reuters.com]
Language software maker Rosetta Stone Inc's trademark infringement lawsuit against Google Inc has been dismissed by a federal judge.Rosetta has vowed to keep pursuing the case which has broad implications for trademark ownership in the digital age.

In the suit filed in 2009, Rosetta claimed Google profits by allowing rivals that pirate its technology to buy the top "sponsored link" ad on search results pages.

Consumers who search for "Rosetta Stone" on the popular search engine and click on a "sponsored ad" may be visiting the website of a software pirate that purports to be Rosetta, but in reality sells a sub-standard product, the lawsuit claimed.
2:55 pm on Apr 30, 2010 (gmt 0)

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yahoo would decline such a keyword.
3:15 pm on Apr 30, 2010 (gmt 0)

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Just checked it and all I got were official sponsored links. But anyways, how about Rosetta Stone go after the pirating sites rather than Google? Is it because Google has a big wallet?
3:36 pm on Apr 30, 2010 (gmt 0)

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Is it because Google has a big wallet?

Or perhaps because it would be more effective than playing whack-a-mole with a new "advertiser" every other week?
3:47 pm on Apr 30, 2010 (gmt 0)

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Whack-a-mole or not, you can't go after the messenger. You can't sue ABC, because it's less tedious than suing XYZ.
4:02 pm on Apr 30, 2010 (gmt 0)

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you can't go after the messenger.

That would obviously depend on one's definition of "messenger".
4:28 pm on Apr 30, 2010 (gmt 0)

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google sued a work from home scam becuase they used google names in their advertising, via google's own adwords/adsense programs.
4:58 pm on Apr 30, 2010 (gmt 0)

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google sued a work from home scam becuase they used google names in their advertising, via google's own adwords/adsense programs.

I believe they were actually claiming to be Google, or atleast affiliated with Google though.

Google's actions there were in good legal standing.
5:00 pm on Apr 30, 2010 (gmt 0)

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Then that would be because Google's got deep pockets and likes protecting it's brand. I'd sue some little work from home outfit for using my brand too. But I agree, Google should now allow anyone other then the brand owner bid on brand terms.
5:25 pm on Apr 30, 2010 (gmt 0)

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Whack-a-mole or not, you can't go after the messenger. You can't sue ABC, because it's less tedious than suing XYZ.

Clearly you have not heard of Napster or the concept of contributory infringement.
11:20 pm on Apr 30, 2010 (gmt 0)

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But I agree, Google should now allow anyone other then the brand owner bid on brand terms.


Rosetta stone is not a brand, it's an archeological artifact first. Anyone can bid on common keywords. The Rosetta Stone people should have thought it through when they hijacked that name.

Anyway, how is Google supposed to manage the millions of brand names out there? A facebook is a common term and a brand. So is twitter.. my space.. intel.. adobe.. etc.
11:40 pm on Apr 30, 2010 (gmt 0)

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well the other engines will decline your keywords if they directly state a brand name. I know for a fact yahoo declined rosetta stone on an aff product I promoted at one time.
12:02 am on May 1, 2010 (gmt 0)

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Rosetta stone is not a brand, it's an archeological artifact first.


It *is* a brand, regardless of what prior uses may exist and it can still be trademarked, though it would be a 'weak' trademark. If I choose to use a common word as a trademark - think "Windows" or "Apple" for the two most obvious examples - I cannot trademark all use of that word.

I can, however, win a trademark infringement suit against someone who tries to sell and operating system called Windows, possibly even someone who tries to sell an OS called Doors.

You are right, though, a name like Windows or Rosetta Stone significantly complicates things when you're talking about using the name in "middle ground" cases where there might or might not be a trademark violation occurring.

And sometimes, filing a trademark suit can cause the problem to go away even if you don't have a legitmate case. Try to create a clothing item on CafePress that uses the word "caution" - they won't let you because some guy who loses every suit he files, has filed against them and it isn't worth it for them to fight it. Easier just to forbid your design.
2:24 am on May 1, 2010 (gmt 0)

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Anyway, how is Google supposed to manage the millions of brand names out there?


You are assuming they would have to preemptively disallow such trademark uses. Wrong and impractical.

The best solution would be based on notice to Google. A trademark owner fills out a form that says "This website is using my trademark to promote similar goods or services." Google is put on notice, and then must block that advert.
4:34 am on May 1, 2010 (gmt 0)

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Some thoughts on the subject: [theregister.co.uk...]
4:35 am on May 1, 2010 (gmt 0)

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Sometimes its hard to spot pr from real stories. I mean Rosetta Stone come on guys it has geek pr written all over it.

A master at this type of pr is Apple and was it called Gizmodo leak.

I actually had a chat with the bar man who was on that night Apple employee lost the phone..... here is what he said ..... "Sure there were a lot of silicon valley in that night, Blackberry lost there new phone in the car park, Google Android said they lost two phones inside the bar and Microsoft said they lost there new phone in the toilet. But hey it was the iphone I saw first"..........
5:04 am on May 1, 2010 (gmt 0)

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Consumers who search for "Rosetta Stone" on the popular search engine and click on a "sponsored ad" may be visiting the website of a software pirate that purports to be Rosetta, but in reality sells a sub-standard product, the lawsuit claimed.


So chase the makers of the sub-standard product, not Google. Imagine if they had posted an ad on a telephone pole somewhere, you'd be hard pressed to sue the pole.
5:07 am on May 1, 2010 (gmt 0)

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Clearly you have not heard of Napster or the concept of contributory infringement.


That applies to copyright, this case is about trademarks.

The original point of trademarks was to prevent deception: i.e. someone "passing off" their product as someone elses.

If there is no deception of customers, then it should be allowed.

From the point of view of the overall economy, allowing bidding on brand names promotes competition, because a legitimate competitor (i.e. selling a competitive rather than piraed product) gets a chance to pitch their product.
5:11 am on May 1, 2010 (gmt 0)

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I can, however, win a trademark infringement suit against someone who tries to sell and operating system called Windows


Bad example: Lindows was allowed in most countries (including the US), but they lost the case in enough to force a change of name. X-Windows is available everywhere.

One problem with TM law is that it is often difficult to know what is OK and what would be a breach.

That said, I think you are right that Rosetta Stone has a pretty strong mark as far as language learning software goes.

Try to create a clothing item on CafePress that uses the word "caution" - they won't let you because some guy who loses every suit he files, has filed against them and it isn't worth it for them to fight it.


Good to know the law works so well that you can effectively win with a case that has no merit!
5:51 am on May 1, 2010 (gmt 0)

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That applies to copyright, this case is about trademarks.

The original point of trademarks was to prevent deception: i.e. someone "passing off" their product as someone elses.


There is such thing a contributory trademark infringement.

But anyway, I brought up contributory copyright infringement to show that sometimes it is easier and necessary to cut off the source/messenger/contributor. Imagine the record companies having to sue every individual file sharer to stop Napster or Grokster? Why should they have to do that when they can just shut down the source?

This is the same thing with Google. Are people seriously contending that they should go after the individual authors of the websites? Who could be thousands in volume and all over the world? Probably based out of Nigeria? Give me a break. This decision is an outrage.
6:52 am on May 1, 2010 (gmt 0)

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A rosetta stone is an egyptian tablet with quite a history.
6:57 am on May 1, 2010 (gmt 0)

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From here [chillingeffects.org ]

This liability may exist if you knowingly allow someone else to violate another party?s trademark rights and personally gain from such violation. It may also exist if you intentionally encourage another person to violate a trademark.


It is not clear to me that bidding on a trademark keyword is a violation of a trademark. It is in France, can you point to US precedents on this?

It also says:

However in another case a court felt that a company providing domain name registration, had less control over the use of its service and was not liable for contributory trademark infringement when someone registered a domain name that infringed a trademark.


SO it is consistent with this that Google are not responsible for the violation of the trademark on the site itself. Selling a keyword based ad is not very different from selling a domain name containing a keyword.

Imagine the record companies having to sue every individual file sharer to stop Napster or Grokster


They do and can go after individuals.

Google cannot always know who owns a trademark, or what is a violation.

Are you seriously contending that Google should decide who it thinks owns every trademark, and restrict bidding on that basis? How can they know who is an authorised re-seller and who is not? How can they know who is selling a pirated copy, and who is selling a legitimate rival product? I am not in favour of search engines doing the job of the courts.

It is is such an excessive burden for TM holders to sue people, why is not an excessive burden for Google to take on?
7:51 pm on May 1, 2010 (gmt 0)

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>It is is such an excessive burden for TM holders to sue people, why is not an excessive burden for Google to take on?

Sorry, but that's a stupid question. To the extent that it can be imposed on someone else, NO burden is excessive.
5:14 am on May 2, 2010 (gmt 0)

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@hutcheson, I assumed the comment I replied to was proposing a "fair" solution (we are discussing laws and legal decision, which should seek to be just)), rather than an "I'm all right Jack" solution.
2:24 pm on May 2, 2010 (gmt 0)

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I have my issues with Google but credit where credit is due. Competitors were running ads triggered by my registered trademark and when I objected, the ads were taken down within a few days. Bing, on the other hand, still allows it and replied to my objections with "We have reviewed the trademark complaint which you submitted and removed any ads which did not comply with our policies." A disingenuous reply, as they removed none of the infringing ads.
12:46 am on May 4, 2010 (gmt 0)

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Jeesh I'm just trying to sell pirated stone copies of the original Rosetta Stone and I'm getting caught up in the middle of all of this.
1:01 am on May 4, 2010 (gmt 0)

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Physics - I tried that niche. You're going to get killed on shipping.
12:15 am on May 9, 2010 (gmt 0)

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GOOGLE IS MAKING MONEY OFF ROSETTA STONE'S TRADEMARK.
Rosetta Stone gets no compensation for the money made from their trademarks.
That is one reason why.
Google even used Rosetta Stone in their suggested keywords.
This was a trademark infringement between two companies, forget public seeing the negotiations when biding on keywords.

Read the docket. Just read the first filing. It'll open your eyes.
[dockets.justia.com...]