Google, the jolly search engine giant we all love, has once again been accused of profiting millions off the joe sixpack trademark owners trying to make a living in the internet marketplace. According to Harvard Business School professor Benjamin G. Edelman, Google makes an estimated $32-$50 million from AdSense ads posted on typosquatting sites. Typosquatting sites buy up domains deceptively close to company names, such as wwachovia.com and harverd.com. Through its AdSense program, Google displays ads on those pages and rakes in millions when users click on them.
These poor little companies, like Microsoft and Bank of America, spend millions of dollars developing the strength of their trademarks and depend on the stability and consistency of trademark law to ensure that their trademarks are safe from infringement. But did Google do anything illegal? Are these companies entitled to compensation?
In order to find infringement, the first step is to prove that Google “used” the marks in interstate commerce. But this is more difficult that is seems. 1800Contacts v. WhenU.com found that these types of practices are merely product placement, which can be found in any supermarket (i.e. when cans of Safeway brand tomato soup look similar to and are placed near cans of Campbell’s tomato soup.) However, 800-JR Cigar v. GoTo.com found that these types of practices are use because selling them in the marketplace allows defendants like Google to profit off someone else’s trademark and implies that they had permission from the trademark owner to use the trademark.
So, will our dear friend Google be found to have infringed? As any lawyer would say: maybe.