New Internet free speech case

[David Farber <dave () farber net>]

Begin forwarded message:

From: Paul Levy <plevy () citizen org>
Date: July 30, 2004 11:27:46 AM EDT
To: dave () farber net
Subject: New Internet free speech case

Today we have filed an amicus curiae brief expressing our views about
the lawsuit brought by GEICO in federal court in Virginia, alleging that
the keyword advertising programs operated by Google and Overture
inherently violate the trademark laws when they sell advertising in
connection with searches that include a trademarked term.  Our argument
is that there is nothing inherently improper about keyword advertising,
even when it is delivered to search engine customers who search for
trademarked terms.  Although we are concerned that some keyword
advertising has become more prominent in search results than the
non-paid results, that is not a trademark issue and the problem is not
confined to searches based on trademarked terms.

Unlike most of our cases, which involve abusive litigation based on
trademark or other theories brought by companies against consumers who
dare to criticize them online, this is a case fought among three big
companies who are more than able to afford the finest lawyers to protect
their own interests.  But our concern is with the impact on the general
public of GEICO's expansive trademark theories, which take laws designed
to produce truth in commercial advertising and promotion, and turn them
on their head to suppress truthful advertising in which one company
seeks to take business away from another company by targeting its ads at
the first company's potential customers and persuading them that the
second company has a better or cheaper product to offer.

In the course of our defense of non-commercial "gripe site" operators,
we have found time and again that we had to distinguish away bad
precedents that had been set in trademark cases fought among commercial
competitors.  As a general matter, we think that, thanks to the
ingenuity and creativity of some of the more aggressive practitioners of
intellectual property law, trademark law has been getting just a bit too
big for its britches, and has been applied to the Internet in a manner
that suppresses fair competition.  We hope that our filing in this case
is just one step in a campaign to keep trademark law confined to its
original purpose, which it to protect consumers against false claims of
sponsorship, not to protect trademark holders against competition.

Our press release follows.  The brief can be found on our web site at
http://www.citizen.org/documents/ACF4F0.pdf


For Immediate Release:                          Contact: Paul
Alan Levy (202) 588-1000
July 30, 2004                                           
LuAnn Canipe (202) 588-7759

GEICO v. Google: Insurance Company Tries to Limit Consumer Access to
Information on the Worldwide Web
                        
Public Citizen Files "Friend of the Court" Brief in Support of Search
Engines' Free Exchange of Information

        WASHINGTON, D.C. - A consumer searching online for information
about an insurance company should not be barred from seeing ads from
that company's competitors, Public Citizen said today in a "friend of
the court" brief involving a lawsuit filed by Government Employees
Insurance Company (GEICO).

            GEICO has filed suit against two major Internet search
engine operators, Google Inc. and Overture Services Inc., in an effort
to suppress advertising by competing insurance companies and online
insurance brokers. GEICO is claiming trademark infringement, alleging
that the search engine operators violate trademark rights by allowing
other insurance companies to advertise to consumers who display an
interest in obtaining information relating in some way to GEICO by using
the registered trademark "GEICO" as a search term.

        In its amicus brief, Public Citizen asked the U.S. District
Court for the Eastern District of Virginia to reject the lawsuit against
Google and Overture, contending that there is nothing about "keyword"
advertising that inherently violates trademark laws. Trademark law
protects against the misuse of a mark to create confusion about whether
particular goods and services emanate from the trademark holder.

          "In this case, GEICO's assumption that any member of the
public using the term 'GEICO' must be searching for the official company
Web site is preposterous," said Paul Levy,  the Public Citizen attorney
who wrote the amicus brief. "The user may be looking for information
about the trademark, or about the trademark holder. He may be looking
for historical information. The user may have a grievance about the
trademarked item and want more information about other similar
grievances."

            Although its principal concern is to protect consumers who
want to use non-commercial Web sites to speak about corporations, Public
Citizen is also interested in protecting the free speech rights of
commercial entities, thus enabling companies to make information more
available to consumers and increasing consumer choices while fostering
competitive pressures that reduce product prices.

          It remains a concern that search engines are becoming
increasingly commercialized. It is important that search engines focus
on clearly disclosing which listings are the result of paid advertising,
and that the paid listings not crowd out the unpaid listings.  There is
a real danger in the system that displays paid search results before
displaying impartial listings, but these problems are not trademark
issues.

        "The Internet provides a tremendous opportunity for ordinary
citizens to express their views, and to have them heard, and by the same
token, it provides an opportunity for consumers to obtain information
that they may need to protect their economic and political interests,"
Levy said. "It is vitally important that the legal rules governing use
of the Internet be crafted to provide a maximum opportunity for the free
exchange of information."

        Public Citizen's local counsel in the case is Raymond Battocchi
of McLean, Virginia.

            A copy of the brief is available on the Web at:
http://www.citizen.org/documents/ACF4F0.pdf


###

Public Citizen is a national, nonprofit consumer advocacy organization
based in Washington, D.C. For more information, please visit
www.citizen.org.





Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html

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