Setting the Record Straight

MediaPost has a story this morning that tries to correct what it says is a misperception, which I am guilty of contributing to, that Google lost its TM case against GEICO. I must admit, I didn't read the decision; I relied on second-hand information that apparently mischaracterized the scope of the finding of liability against Google.

As a former lawyer, I have to say "mea culpa."

Here's how MediaPost's Wendy Davis summarizes the judge's decision:

In her oral decision last December–which she finally put in writing last week–Brinkema ruled that Geico hadn't proven that Google's policy of allowing Geico competitors to appear as sponsored listings when consumers typed the word "Geico" into the query box violated Geico's trademark. She stated that Geico didn't present enough evidence to convince her that consumers were confused by the practice.

But in a portion of the holding affecting just a small portion of the case, Brinkema ruled last December–and repeated last week–that sponsored ads that included the word "Geico" in the headline or text of the copy caused confusion, and therefore violated Geico's trademark.

So, narrowly it appears (still not having read the actual opinion), trademarked terms cannot appear in the text or body of AdWords, which Davis says is not allowed anyway under Google's current policy. She also says that Google's AdWords policies more generally are not implicated by the ruling.

But see my earlier post about TM policy confusion.

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Related: Statement from Google's VP and General Counsel David Drummond

DMNews article about the contours of the ruling.