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Court Tosses Antitrust Claims That Internet Giants Are Biased Against Conservatives–Freedom Watch v. Google

Apologies if I’m not being appropriately empathetic, but I think lawsuits alleging that Internet giants are biased against conservatives are stupid and counterproductive. They are premised on factually unsupportable assertions of bias, and most of these plaintiffs would enthusiastically cheer such bias so long as it worked against minorities or the libs. Further, there is no viable solution to “fix” bias. “Bias” is intrinsic in every media ecology, so it’s impossible to eradicate. The closest “s...
Tags: Google, Facebook, Law, Search Engines, Sony, Taylor, Brittain, US supreme court, Trump, Cox, Google Facebook, Google Inc, Second Circuit, Facebook Facebook, McFadden, Twitter Twitter


Do Adjacent Organic Search Results Constitute Trademark Infringement? Of Course Not…But…–America CAN! v. CDF

One of the screenshots from the complaint A charitable fundraising organization, America CAN!, has a registered trademark in the phrase “Write off the car, not the Kid.” The organization purports to help the education of high risk youths, and it claims that “100% of the net proceeds go to the kids.” So the “kid” in the trademarked phrase appears to refer to disadvantaged youths, not tax writeoffs for being a parent. As a parent, the pun didn’t work for me. The lawsuit relates to Make-a-Wish Nor...
Tags: Google, Amazon, Florida, Yahoo, Law, California, Marketing, America, Search Engines, Trademark, BPI, Ftc, Weber, Florida Bar, Cooper, Abraham


Unhappy AdWords Advertiser’s Lawsuit Partially Survives Motion to Dismiss–Dreamstime v. Google

Dreamstime sells stock photos. It started running Google AdWords in 2004. In 2015, Google organic (?) referrals to Dreamstime “plummeted,” allegedly reducing its number of new customers by 30% in a year.  (The opinion isn’t crystal-clear that the traffic drop was only organic). In response, Dreamstime took many of the standard steps to rehabilitate its search reputation, plus it increased its AdWords spend by 50%. According to the complaint, “no one, including ‘guru’ search engine optimization c...
Tags: Google, Yahoo, Law, Marketing, Search Engines, Bing, Google Adwords, LLC, Licensing/Contracts, Dreamstime, Google Sherman Act Monopoly Maintenance Dreamstime, Google Dreamstime


2H 2018 Quick Links, Part 3 (Keyword Advertising)

* St. George Executive Shuttle LLC v. Western Trails Charter & Tours LLC, 2018 WL 3350348 (D. Utah July 9, 2018). This is a competitive keyword advertising lawsuit involving the purported trademark “St. George Shuttle” (St. George is a city in Utah). The court denies the defendant’s motion to dismiss as premature. What are the odds the court will void the plaintiff’s “trademark” before this lawsuit is over? * LegalForce RAPC Worldwide v. Swyers,  3:17-cv-07318-MMC (ND Cal. July 17, 2018). Plain...
Tags: Google, Amazon, Utah, Law, Congress, Marketing, Search Engines, DMV, Bing, Trademark, George, Fla, Amazon com Inc, Multi Time Machine, Lasoff, St George Executive Shuttle LLC


The Ongoing Saga of the Florida Bar’s Angst About Competitive Keyword Advertising

In August, I reported on the Florida Bar’s continued angst about regulating competitive keyword advertising by lawyers. Read my post, “The Florida Bar and Competitive Keyword Advertising: A Tragicomedy (in 3 Parts),” for the full background. The short story is that in 2013, the Florida Bar considered banning lawyers’ competitive keyword advertising, but surprisingly concluded the process by blessing it. In 2018, the Florida Bar revisited banning competitive keyword advertising–despite five addit...
Tags: Amazon, Florida, Law, California, Marketing, Search Engines, Trademark, BPI, Ftc, Florida Bar, Board of Governors, Jive, Publicity/Privacy Rights, Infogroup, ElitePay Global, CardPaymentOptions Google


Your Periodic Reminder That Keyword Ad Lawsuits Are Stupid–Passport Health v. Avance

The parties compete for the provision of health services related to traveling, like immunizations. The defendant Avance bought keyword ads triggered on the plaintiff’s trademark “Passport Health.” In 2013, the trademark owner complained, and Avance apparently dropped the Google ad buy. However, apparently everyone forget about Bing. In 2017, the trademark owner reemerged, complaining about the Bing ad buys. This lawsuit ensued. It doesn’t go well for the trademark owner. You kind of get the sens...
Tags: Google, Amazon, Florida, Law, California, Marketing, Search Engines, Bing, Trademark, BPI, Ftc, LCC, GEICO, Troutman Sanders, Jive, Infogroup


Restricting Competitive Keyword Ads Is Anti-Competitive–FTC v. 1-800 Contacts

Starting in 2002 and continuing for about a decade, 1-800 Contacts systematically locked up many of its online contact lenses retail competitors into settlement agreements that prohibited the parties from bidding on each other’s trademarks at the search engines. Perhaps not coincidentally (this was the subject of some back-and-forth among experts), 1-800 Contacts unapologetically and consistently charges higher prices than its online retailer competitors. In 2016, the FTC filed an administrativ...
Tags: Google, Law, Marketing, E-commerce, Search Engines, Rebecca, Commission, Slaughter, Search Advertising, Bing, Costco, Trademark, BPI, Mccarthy, Ftc, Lens


'Right to be forgotten' could threaten global free speech, say NGOs

ECJ hears France’s data regulator wants to extend 2014 ruling to apply universallyThe “right to be forgotten” online is in danger of being transformed into a tool of global censorship through a test case at the European court of justice (ECJ) this week, free speech organisations are warning.An application by the French data regulator for greater powers to remove out of date or embarrassing content from internet domains around the world will enable authoritarian regimes to exert control over publ...
Tags: Google, Technology, Privacy, Law, Internet, France, Search Engines, Court of justice of the European Union, Data Protection, Right To Be Forgotten, Ecj


Another Failed Trademark Suit Over Competitive Keyword Advertising–JIVE v. Wine Racks America

The parties compete in the wine rack/wine cellar business. The defendant bought the plaintiff’s trademarks for keyword ads. The plaintiff alleges this creates initial interest confusion. The 10th Circuit’s Lens.com ruling governs this case. The court says that case makes this an easy defense win: A consumer using the search term Vino Grotto is unlikely to be confused by the appearance of an advertisement for Defendants. As is demonstrated by Exhibit Q to the Motion, a consumer will be able to e...
Tags: Amazon, Utah, Florida, Law, California, Marketing, Search Engines, Trademark, BPI, Ftc, Jive, Infogroup, ElitePay Global, CardPaymentOptions Google, Fareportal, EarthCam


Negative Keywords Help Defeat Preliminary Injunction–DealDash v. ContextLogic

DealDash and Wish are e-commerce vendors. For a while, Wish offered a service called “Deal Dash” for time-limited bargains. Immediately after DealDash sued, Wish renamed its service “Bargain Blitz” and pulled the “DealDash” term from all advertising. DealDash still pressed for a preliminary injunction that restricted, among other things, using “DealDash” as keyword ad triggers in search engines and app stores. Wish submitted an affidavit that it had blocked “DealDash” or “Deal Dash” as negative ...
Tags: Apple, Google, Amazon, Florida, Law, California, Marketing, Search Engines, Trademark, BPI, Ftc, Infogroup, ElitePay Global, CardPaymentOptions Google, Fareportal, EarthCam


The Florida Bar and Competitive Keyword Advertising: A Tragicomedy (in 3 Parts)

In the late 2000s, keyword advertising was one of Internet Law’s hottest topics. Now, not so much. Relatively few lawsuits are filed; they rarely last long in court; and most trademark owners have moved on. But in the Florida Bar, the keyword advertising debate rages on like it’s 2009. If all this sounds familiar, you have a good memory. In 2013, the Florida Bar considered a proposal to ban competitive keyword advertising by lawyers. In a surprising upset, the Board of Governors narrowly rejecte...
Tags: Google, Amazon, Florida, Texas, Law, California, Marketing, Search Engines, Trademark, BPI, Ftc, Florida Bar, Federal Trade Commission FTC, Bog, Board of Governors, Internet History


Draft OPC Position on Online Reputation and Public Consultation

On Friday, January 26, 2018, the Office of the Privacy Commissioner of Canada (OPC) released a draft of their position regarding online reputation and on how Canadians can better protect their online privacy and rights. The draft report is the result of a 2016 consultation on online reputations. Through this consultation, the OPC was soliciting input from interested stakeholders about new and innovative ways to protect reputational privacy. Reputation and Privacy is one of the OPC’s four strateg...
Tags: Technology, Law, Miscellaneous, Eu, European Union, Search Engines, Canada, Right To Be Forgotten, Parliament, Search Results, Federal Court, Public Interest, Google Microsoft, OPC, PIPEDA, Office of the Privacy Commissioner of Canada


Google de-ranking and Washington pressure

After Sen. Dianne Feinstein of California pressured its general counsel at a hearing, Google de-ranked the Russian state media enterprise RT in its search results. As a private company, Google would have been within its rights to arrive at such a decision for reasons of its own. But for it to do so in response to government pressure, as appears to have happened here, poses very real First Amendment problems [John Samples, Cato] Tags: First Amendment, Google, Russia, search engines Google...
Tags: Google, Law, California, Washington, Russia, Uncategorized, Search Engines, First Amendment, Sen Dianne Feinstein, John Samples Cato


YouTube investigates reports of child abuse terms in autofill searches

Users reported seeing ‘s*x with your kids’ and other variants after entering phrase ‘how to have’ on Google-owned siteYouTube is investigating reports that its autofill search features are suggesting “profoundly disturbing” child abuse terms.Users reported seeing auto-suggestions of “s*x with your kids” and other variants after entering the phrase “how to have” in the search box on the Google-owned site. Experts have speculated that the search terms – several of which use the asterisked word “s*...
Tags: Google, Technology, Media, Internet, Youtube, Society, Search Engines, Video On Demand, Alphabet, Online Abuse


Bogus-lawsuit “reputation management” scheme comes to grief

After a push from (among others) Texas Attorney General Ken Paxton, one elaborate scheme using dummy litigants and deceptively staged court orders to get Google to de-index some articles appears to have been knocked offline. Eugene Volokh and Paul Alan Levy have been among those recently exposing as fraudulent some practitioners of the art known as “libel takedown” or “de-indexing injunctions.” [Dave Lieber/Dallas News, Volokh in September and related on similar schemes here (takedown request ag...
Tags: Google, Texas, Law, Uncategorized, Search Engines, Ken Paxton, Eugene Volokh, Paul Alan Levy, Online Speech, Volokh, Dave Lieber Dallas News Volokh


US Court Protects Google From Canadian Court’s Delisting Order–Google v. Equustek

[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.] Datalink allegedly misappropriated Equustek’s trade secrets to develop competitive products. Equustek sued Datalink in Canadian courts and obtained various court orders. The Datalink principal fled Canada and can’t be found. Equustek requested that Google delist Datalink from its search results. Google said no, but after Equustek obtained a Canadian injunction against Datalink, Google removed 300 ...
Tags: Google, Europe, Law, Congress, France, US, Eu, Search Engines, Trade Secrets, Canada, United States, Rtbf, Barnes, Google Google, EU Google, Content Regulation


White-on-White Trademark Usage Might Constitute Initial Interest Confusion–Agdia v. Xia

Are we really litigating trademark references in white-on-white text in 2017??? Yes, we are, and yes, the whole case is a throwback to the mid-2000s (e.g., the 2008 Venture Tape case)–with effects that would be comical if they weren’t so sad. The litigants compete in the “plant diagnostics” business. Agdia’s tagline: “Keeping your crops happy…it’s our passion.” Agdia claims the defendant, in 2007, put the Agdia trademark in white-on-white text on over 200 pages. This is an archaic practice; Matt...
Tags: Google, Law, Marketing, Search Engines, Circuit, Trademark, Harley Davidson, Ninth Circuit, Matt Cutts, Blech, Seventh Circuit, 10th Circuit, ACD, Promatek, Equitrac, Xia


1H 2017 Quick Links, Part 5 (Advertising, Contracts)

Advertising * David A. Hyman et al, Going Native: Can Consumers Recognize Native Advertising? Does It Matter?, 19 Yale J.L. & Tech. 77 (2017): “We tested sixteen examples of native advertising. For fifteen of the sixteen examples, fewer than 50% of respondents knew that native ads were paid content. Averaged across all sixteen examples, only 38% of respondents knew that native ads were paid content.” * NY Times: While retailers and brands may feel like they have no choice but to spend on search ...
Tags: Law, Washington Post, Marketing, Search Engines, Fullscreen, Target, Ftc, Reuters, Ny Times, Bob Sullivan, Licensing/Contracts, Kristi Argyilan, Google Home, Jane Bambauer, Hancom, Ghostscript


1H 2017 Quick Links, Part 3 (Google, Facebook, Uber, Airbnb)

Google * Bloomberg: Google Now Scrubbing Private Medical Records From Search Results * Search Engine Land: A deep look at Google’s biggest-ever search quality crisis * Search Engine Land: Google launches new effort to flag upsetting or offensive content in search * Ars Technica: The secret lives of Google raters * Search Engine Land: Dear Google: 4 suggestions for fixing your massive problem with fake reviews * : Here’s how Google’s own ads impact bids & pricing in AdWords auctions. . * Search...
Tags: Google, Facebook, Uber, Law, California, Washington Post, Washington, Eu, Search Engines, Atlantic, New Jersey, Alexandria, Fergus Henderson, Ny Times, HARRIS, San Francisco Chronicle


1H 2017 Quick Links, Part 1 (Trademarks, Keyword Ads)

Trademark * Viacom Int’l Inc v. IJR Capital Investments LLC, 2017 WL 107141 (S.D. Tex. Jan. 11, 2017): “Because “The Krusty Krab” is a recurring element of the “SpongeBob SquarePants” show, the court finds that the mark is eligible for trademark protection.” Yet Viacom apparently never marketed any actual goods or services under the “Krusty Krab” mark. Viacom did market goods and services associated with the SpongeBob Squarepants marks, but this seems like an incorrect ruling if Krusty Krabb was...
Tags: Google, Amazon, Law, Ebay, Marketing, Bloomberg, Search Engines, Brooklyn, Pennsylvania, Commission, Alibaba, Ikea, Ohio, Chanel, Detroit, Trademark


Section 230 Protects Google’s Decision Not To De-Index Content–Bennett v. Google

Dawn J. Bennett was a financial advisor in major trouble with the SEC. She also has a sporting apparel company. She hired an SEO, Pierson, to improve the search engine indexing of her website. After a payment dispute, Pierson posted a blog post that starts out “DJ Bennett, the luxury sporting goods company, does not pay their employees or contractors.” Bennett demanded Google de-index the blog post, and then sued Google for defamation and more when it didn’t. As you’d expect, the suit flops. Gu...
Tags: Google, Law, Search Engines, Noah, Aol, SEC, Zuckerberg, Bennett, Google Inc, Pierson, Plaintiffs, CDA, Klayman, Content Regulation, Derivative Liability, Zeran


Frequency of Courts’ References to Emojis and Emoticons Over Time

[This is another excerpt from my Emojis and the Law paper.] In preparing the article, I gathered a dataset of all cases I could find in Westlaw and Lexis containing the word “emoticon” or “emoji.” This dataset is subject to the many known limitations of researching cases in Westlaw and Lexis, such as the limited percentage of opinions that make it into the electronic databases. In total, I found 80 opinions dated December 31, 2016 or earlier containing the term “emoticon” or “emoji.” I have post...
Tags: Law, Search Engines, People, Emojis, Robinson, Ramirez, Westlaw, Herrera, Evidence/Discovery, Yadira, Westlaw Westlaw


Lawsuits to scrub search engine results

Eugene Volokh blogs about legal stratagems used to get Google to de-index damaging articles [first, second, third, fourth posts, plus more here and here] More from Paul Alan Levy on the issue of requests based on fictional litigants here and here. Yet more: TechDirt. Tags: Baltimore, libel slander and defamation, search engines Lawsuits to scrub search engine results is a post from Overlawyered - Chronicling the high cost of our legal system
Tags: Google, Law, Uncategorized, Search Engines, Baltimore, Eugene Volokh, Paul Alan Levy, Libel Slander And Defamation


1-800 Contacts Charges Higher Prices Than Its Online Competitors, But They Are OK With That–FTC v. 1-800 Contacts

As you recall, the FTC has taken the position that 1-800 Contacts’ agreement with competitors, via settlement agreements, not to bid on each other trademarks as keywords violates antitrust laws. Prior blog posts: * FTC Sues 1-800 Contacts For Restricting Competitive Keyword Advertising * FTC Explains Why It Thinks 1-800 Contacts’ Keyword Ad Settlements Were Anti-Competitive–FTC v. 1-800 Contacts This post catches up on some highlights since my prior post: 1-800 Contacts’ Pretrial Brief The FTC’s...
Tags: Yahoo, Law, Russia, Marketing, E-commerce, Search Engines, United States, Brookfield, Ohio, Bing, Costco, Trademark, Ftc, Nyu, Trump, Hogan


Not A Networker? Grow Your Small Law Firm With Pay-Per-Click Advertising

Networking is a powerful way to gain new customers, but what if you’re not much of a networker?
Tags: Facebook, Law, Social Media, Search Engines, Sponsored Content, Small Law Firms, Lawyer Advertising, Smokeball, Lynn Luong


Catching Up On Some Recent Click Fraud Rulings

After all of the excitement over click fraud a decade ago, we don’t often see click fraud cases any more. However, just in the past couple months I’ve seen 3 rulings that I wanted to share with you. Wickfire, LLC v. Woodruff, 2017 WL 1149075 (W.D. Tex. March 23, 2017). The complaint. This case involves click fraud and other online marketing shenanigans. It leads to a major damages award for the plaintiff. The parties are both SEMs. Wickfire claimed that TriMax “(1) placed fraudulent advertiseme...
Tags: Google, Facebook, Texas, Law, California, Marketing, Search Engines, Google Analytics, IAC, Trademark, Yellow Pages, Google Facebook, Facebook Inc, Larson, Woodruff, Larsen


FTC Explains Why It Thinks 1-800 Contacts’ Keyword Ad Settlements Were Anti-Competitive–FTC v. 1-800 Contacts

As you may recall, the FTC is pursuing 1-800 Contacts for antitrust violations based on 1-800 Contacts having sued and then settled with competitors who bought keyword ads on 1-800 Contacts’ trademarks. Recently, the FTC filed its “Complaint Counsel’s Corrected Pre-Trial Brief and Exhibits” in the Matter of 1-800 Contacts, Inc. This 90 page document, unfortunately swiss-cheesed by numerous redactions, lays out the FTC’s case. It’s a fascinating read, and I encourage you to read the whole thing. ...
Tags: Google, Amazon, Microsoft, Law, California, Marketing, US, E-commerce, Search Engines, Brookfield, Evans, Trademark, BPI, Ftc, Lens, Harvard Law School


A reputation-scrubbing scheme and its elusive notaries

Try to track down the notaries who signed on this search-engine-scrubbing scheme as witnesses, and they melt away as if but a dream [Eugene Volokh] Tags: libel slander and defamation, online speech, search engines A reputation-scrubbing scheme and its elusive notaries is a post from Overlawyered - Chronicling the high cost of our legal system
Tags: Law, Uncategorized, Search Engines, Eugene Volokh, Libel Slander And Defamation, Online Speech


Plaintiff Can’t Erase Court Order From the Internet–Nelson v. Social Security Commissioner

The Commissioner of Social Security ruled that Nelson’s disability ended in 2010 and terminated benefits. In 2014, Nelson filed a federal lawsuit contesting that determination. In 2014, the judge ruled in her favor. In 2016, Nelson went back to court. She said that some “law research blogs” had published the court’s 2014 order, and its presence online “was frightening her” and “caused her to fear for her safety.” The court denied her motion to seal her casefile. She then filed a letter (which t...
Tags: Law, Court, Search Engines, United States, Social Security, Rtbf, Nelson, Privacy/security, Hearst, Martin, Content Regulation


Trademark Lawsuit Claiming Organic Search Results Create Initial Interest Confusion Falls Apart–Larsen v. Larson

Disclosure note: I provided an expert report in this now-dismissed case, so you might consider my comments to be advocacy. I’ll explain my expert role in a bit. The Court Opinion Susan Larsen practices business law in the Denver, Colorado metro area under the name Larsen Law Offices. She claims she’s been using the name since 2003, though she did not register the name as a trademark (and would need to address the obvious secondary meaning issues to do so). David Larson practices estate planning ...
Tags: Google, Law, Marketing, Search Engines, Kent, Domain Names, Denver, Trademark, Larson, Denver Colorado, Larsen, ACPA, David Larson, Susan Larsen, Larson Law Offices, David M Larson PLLC Larson



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