Carfax et al Amicus Brief in Rosetta Stone v Google

8/8/2019 Carfax et al Amicus Brief in Rosetta Stone v Google

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(additional counsel listed inside)

No. 10-2007

_______________________________________

IN THE

UNITED STATES COURT OFAPPEALS

FORTHE FOURTH CIRCUIT

_______________________________________

ROSETTA STONE LTD.,

Plaintiff-Appellant,

v.

GOOGLE INC.,

Defendant-Appellee_______________________________________

On Appeal From the United States District Court

For the Eastern District of Virginia, Alexandria Division

_______________________________________

BRIEF FOR AMICI CURIAE CARFAX, INC., FORDMOTOR

COMPANY, HARMON INTERNATIONAL INDUSTRIES,

INCORPORATED, THE MEDIA INSTITUTE, VIACOM INC. AND

BLUES DESTINY RECORDS, LLC IN SUPPORTOF

PLAINTIFF-APPELLANT ROSETTA STONE LTD.

_______________________________________

Marcia B. Paul

Kevan Choset (Of Counsel)

Davis Wright Tremaine LLP

1633 Broadway

27th

Floor

New York, New York 10019Telephone: (212) 489-8230

Counsel for Amici Curiae Carfax, Inc.,

Harmon International Industries,

Incorporated, The Media Institute, Viacom

Inc. and Blues Destiny Records, LLC

Daniel P. Reing

Davis Wright Tremaine LLP

1919 Pennsylvania Avenue, N.W.

Suite 800

Washington, DC 20006

Telephone: (202) 973-4200


Harmon International Industries,

Incorporated, The Media Institute, Viacom

Inc. and Blues Destiny Records, LLC

Case: 10-2007 Document: 34-1 Date Filed: 11/01/2010 Page: 1


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Mark S. Sparschu

Brooks Kushman P.C.

1000 Town Center

22nd

Floor

Southfield Michigan 48075

Telephone: (248) 358-4400Counsel for Amicus Curiae Ford Motor

Company



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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .....................................................................................1

IDENTITY OF AMICI ..............................................................................................1

PRELIMINARY STATEMENT ...............................................................................3

I. THE DISTRICT COURT ERRED IN REJECTING THE

CONTRIBUTORY INFRINGEMENT CLAIM ON SUMMARY

JUDGMENT....................................................................................................4

A. The Court Below Applied Far Too Narrow a Standard for

Inducement to Engage in Trademark Infringement ..............................5

B. That An Online Keyword-Based Advertising Service Can Be

Used to Create and Post Lawful Advertisements Does Not

Insulate It From Its Otherwise Infringing Conduct............................ 10

C. The Court Below Erroneously Limited its Contributory

Infringement Analysis to Counterfeiters............................................ 14

D. The District Courts Narrow View of Contributory Infringement

Resulted in an Incorrect Analysis of Secondary Liability for

Counterfeiters Advertisements.......................................................... 17

1. The District Court Ignored the Facts Demonstrating

Googles Knowledge of Infringements.................................... 17

2. The Decision of the Court Below Places an Unreasonable

Burden on Trademark Owners to Police Their Intellectual

Property.................................................................................... 21



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TABLE OF AUTHORITIES

Page(s)

CASES

Allstar Marketing Group, LLC v. Your Store Online, LLC,666 F. Supp. 2d 1109 (C.D.Cal 2009) .....................................................................................20

CollegeSource, Inc. v. AcademyOne, Inc.,

No. 08-cv-1987, 2009 WL 2705426 (S.D.Cal. Aug 24, 2009)................................................20

Fonovisa, Inc. v. Cherry Auction, Inc.,

76 F.3d 259 (9th Cir. 1996) ...................................................................................................8, 9

FragranceNet.com, Inc. v. FragranceX.com, Inc.,

679 F. Supp. 2d 312 (E.D.N.Y. 2010) .....................................................................................16

FragranceNet.com, Inc. v. Les Parfums, Inc.,672 F. Supp. 2d 328 (E.D.N.Y. 2009) .....................................................................................16

G.H. Bass & Co. v. Wakefern Food Corp.,21 U.S.P.Q.2d 1862 (S.D.N.Y. 1991)......................................................................................10

Georgia Pacific Consumer Products, LP v. Von Drehle Corp.,618 F.3d 441 (4th Cir. 2010) ...............................................................................................5, 11

H-D Michigan Inc. v. Bikers Dream Inc.,

48 U.S.P.Q.2d 1108 (C.D. Cal. 1998), affd in relevant part, 230 F.3d 1366 (9th

Cir.

2000) ..........................................................................................................................................9

Hard Rock Cafe Licensing Corporation v. Concession Services, Inc.,

955 F.2d 1143 (7th Cir. 1992) .............................................................................................9, 18

Inwood Labs., Inc. v. Ives Labs., Inc.,456 U.S. 844 (1982)...................................................................................................4, 5, 11, 17

Lockheed Martin Corporation v. Network Solutions Inc.,194 F.3d 980 (9th Cir. 1999) .....................................................................................................8

Metro-Goldwyn-Mayer Studios Inc. v. Grokster,

545 U.S. 913 (2005).....................................................................................................11, 12, 13

Morningware, Inc. v. Hearthware Home Products, Inc.,

673 F. Supp. 2d 630 (N.D.Ill. 2009) ........................................................................................20

Parts Geek, LLC v. U.S. Auto Parts Network, Inc.,

No. CIVA 09-5578, 2010 WL 1381005 (D.N.J. Apr 1, 2010) ....................................15, 16, 19



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Rescuecom Corp. v. Google Inc.,

562 F.3d 123 (2d Cir. 2009).....................................................................................................15

Sony Corp. v. Universal City Studios,464 U.S. 417 (1984)...........................................................................................................10, 11

Symantec Corp. v. CD Micro, Inc.,

286 F. Supp. 2d 1278 (D. Ore. 2003).........................................................................................9

Tiffany (NJ) Inc. v. eBay Inc.,

600 F.3d 93 (2d Cir. 2010).....................................................................................16, 17, 19, 22

STATUTES

Lanham Act, 15 U.S.C. 1051 et seq...................................................................................... 11, 22



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BRIEF OFAMICI CURIAE

CARFAX, INC., FORD MOTOR COMPANY, HARMAN

INTERNATIONAL INDUSTRIES, INCORPORATED, THE MEDIA

INSTITUTE, VIACOM INC. AND BLUES DESTINY RECORDS, LLC

IN SUPPORT OF PLAINTIFF-APPELLANT

This brief is respectfully submitted by Carfax, Inc., Ford Motor Company,

Harman International Industries, Incorporated, The Media Institute, Viacom Inc.

and Blues Destiny Records, LLC (together, amici), urging reversal of the order

below.1

IDENTITY OF AMICI

Amici include some of this nations major corporations, who own a great

number of valuable trademarks, as well as a nonprofit research organization that

studies intellectual property issues.

Amicus Carfax, Inc., a privately held company founded in 1984, pioneered

the Vehicle History Report. Carfax owns federal trademark registrations for a

number of marks, including the CARFAX mark. Carfaxs products and services

are delivered primarily through the Internet, and Carfax actively markets to

customers via the Internet.

Amicus Ford Motor Company is a global automotive industry leader that

manufactures or distributes automobiles across six continents and provides related

1Both parties have consented to this amici curiae brief. No counsel for a party

authored this brief in whole or in part, and no person or entity other than amici and

their counsel made a monetary contribution to the preparation or submission of this

brief.



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products and services. It is the owner of many trademarks, including the iconic

FORD mark, which has been in use since 1895 and is one of the most well-known

marks in the world.

Amicus Harman International Industries, Incorporated is a multinational,

publically held consumer electronics company with brands protected in many

countries worldwide and owns over two thousand trademarks worldwide.

Amicus The Media Institute is an independent, nonprofit research

organization located in Arlington, Va. Through conferences, publications, and

filings with courts and regulatory bodies, the Institute advocates a strong First

Amendment, a competitive communications industry, and journalistic excellence.

The Institute also has a strong interest in intellectual property issues, and sponsors

the National CyberEducation Project.

Amicus Viacom Inc. is a leading global entertainment media company that

delivers entertainment content around the globe through television, motion pictures

and a wide range of digital media, including mobile platforms and video games. Its

family of prominent and respected brands includes MTV Networks (comprised of

the MTV, VH1, Nickelodeon, Comedy Central, CMT and TV Land channels,

among others), BET Networks, and Paramount Pictures.

Amicus Blues Destiny Records, LLC is an independent Blues record label

based in Destin, Florida. It owns the Blues Destiny Records trademark.



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PRELIMINARY STATEMENT

Amici are owners of valuable trademarks (and an organization involved in

intellectual property issues) who work diligently to develop and protect the

goodwill associated with their brands. Amici actively police their trademarks and

currently devote significant resources to guard against unauthorized uses of the

marks online. Increasingly, such unauthorized uses occur in the context of online

advertising. Because consumers often search online for known brands when

seeking to locate goods and services (and, in doing so, rely on trademarks to

signify a particular level of quality), there can be adverse consequences to such

brand owners and to consumers when they are misled and/or confused by

competitors or, worse, by counterfeiters. Accordingly, brand owners must often

rely on good-faith efforts by operators of online advertising platforms. Where an

online keyword-based advertising service such as appellee Google Inc. (Google)

fails to take the necessary steps to deter infringement, creates an environment that

fosters infringement, or suggests and implements the tools that allow others to

infringe, secondary liability is often the only realistic avenue on which amici can

rely to prevent complete erosion of the goodwill in their trademarks.

Amici take no position here as to whether the record below establishes as a

matter of law that specific third parties have (or have not) engaged in conduct

constituting primary infringement underlying a claim for secondary infringement



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by Google. However, it appears that neither party disputes that some underlying

primary infringement does in fact occur through AdWords, whether by

counterfeiters, advertisers posting misleading advertisements, or otherwise. A

program like AdWords works with advertisers by suggesting specific words,

including trademarked terms, on which they should bid; allows advertisers to

associate their ads with these specific words; displays the advertisers messages to

users who search for information about that trademarked term; and chooses which

advertisement appears, and in what order. Thus, the question addressed in this

brief is whether that level of involvement in promoting such potentially infringing

activities rises to a sufficient level to constitute infringement. Amici believe that

the district court erred when it answered that question in the negative.

ARGUMENT

I.

THE DISTRICT COURT ERRED

IN REJECTING THE CONTRIBUTORY

INFRINGEMENT CLAIM ON SUMMARY JUDGMENT

In order to be liable for contributory infringement, one must intentionally

induce[] another to infringe or continue[] to supply its product to one whom it

knows or has reason to know is engaging in trademark infringement. Inwood

Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 854 (1982). The court below failed to



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apply the proper standard as explicated in the case law to the facts at issue in this

case, as explained below.

A. The Court Below Applied Far Too Narrow a Standard for Inducement

to Engage in Trademark Infringement

The district court erred in its reading of the inducement prong of the

contributory infringement standard. In Inwood, the Supreme Court provided the

framework that would eventually evolve into contributory trademark infringement

jurisprudence. The court below construed this standard of intentionally

induc[ing] another to infringe a trademark narrowly, equating inducement with

nothing less than holding ones feet to the fire. But the case law in this Circuit and

elsewhere simply does not support such a narrow view.

Just this year, this Circuit decided Georgia Pacific Consumer Products, LP

v. Von Drehle Corp., 618 F.3d 441 (4th Cir. 2010). In that case, defendant

manufactured low-price paper towels that could fit into paper towel dispensers

manufactured by plaintiff (and designed to dispense plaintiffs own paper towels).

Noting that [defendants] sales personnel made in-person sales calls on

distributors and end-user customers to market [defendants] Toweling as a less

expensive alternative to [plaintiffs] Toweling, this Court found that defendant

was contributorily liable for the fact that third parties were placing defendants

towels in plaintiffs dispensers. Id. at 451. Defendant did not itself place its paper

towels into plaintiffs paper towel dispensers, and it did not tell third parties to do



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so. Rather, it provided towels the same size as plaintiffs, and told consumers the

true fact that its paper towels were less expensive than plaintiffs. But, this Court

held, secondary liability nonetheless attached.

Just as Von Drehles sales representatives reached out and stated objective

facts to sell its product, not suggesting any actions consumers should take once

they bought that product, Google, by offering trademarks for auction to those other

than their owners in AdWords, and separately by its Keyword Tool2, likewise

appears to be reaching out and suggesting that its customers use specific

AdWords including trademarked names of their competitors to attract

customers. Use of the AdWord tools bears this out. For any customer seeking to

advertise cola (whether a counterfeiter, a manufacturer of a specific cola product,

or anyone else), Googles Keyword Tool suggests keywords that include brands

such as RC Cola and cola coca. (See Appendix A.) Such activity by keyword-

2

The district court states that there are three separate tools that suggest keywordsto advertisers: (1) Keyword Tool; (2) Query Suggestion Tool; and (3) a

trademark-specific version of the Query Suggestion Tool. Op. at 9. Because a

large part of the record is under seal, amici do not fully understand the workings of

all three of these tools. Amici have used the current online version of the

Keyword Tool in preparing this brief, and cite several examples of results

obtained therefrom.



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based advertising services clearly encourages the use of brand names to attract

unwitting consumers.3

In setting up a program that allows third parties to bid for a competitors

trademarks and then suggesting that they do so, a keyword-based advertising

service indeed evidences the requisite intent to induce competitors to bid for

competitive trademarks and to induce counterfeiters to use the real brand to lure

customers to their fake wares. The service need not have the intent to sell to

counterfeiters or competitors, so long as it intends to sell the right to use anothers

trademark in a way that is likely to cause confusion.

The court below also concluded that the mere existence of a tool that assists

advertisers in optimizing their advertisements does not, in itself, indicate intent to

induce infringement. Op. at 35. That may well be true in general terms, but it is

not the mere existence of the tool, but the inclusion in it of trademarked terms that

demonstrates the requisite intent. Likewise, for the court below to point to a lack

of evidence that Googles Keyword Tools or its employees direct or influence

advertisers to bid on the Rosetta Stone Marks (Op. at 41) simply ignores the

facts of the present case: the Keyword Tools, by their very design, do exactly that.

3The fact that Google has a separate trademark-specific version of the Query

Suggestion Tool makes any claim that it is not pushing the use of trademarked

terms particularly disingenuous. Op. at 9. In any event, the standard Keyword

Tool described above suggests RC Cola and cola coca as keywords, so that

tool alone provides inducement.



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They are selected and offered by Google to induce customers to bid on terms that it

knows or has reason to know can be and are used to trade upon intellectual

property owned by others, including but not limited to counterfeiters. When a

customer is told, You can drive traffic to your cola site by bidding on the term

cola coca, that is not merely optimizing [an] advertisement (Op. at 35). This

would be precisely the same as characterizing the statement Our paper towels are

a cheaper alternative to those trademarked paper towels, as merely a statement

about optimizing revenue. This Court has found the latter to be an inducement

and should find similarly with respect to the former.

To place the present facts in context, two contributory trademark

infringement cases from the Ninth Circuit with differing results ( Lockheed Martin

Corporation v. Network Solutions Inc., 194 F.3d 980 (9th Cir. 1999) and Fonovisa,

Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996)), are instructive. In

Lockheed, defendant Network Solutions was a domain name registrar who fulfilled

third-party requests for domain names. It did not suggest particular domain names

to applicants, but rather registered those requests and entered them into its

database, so they could be automatically accessed, or translated, whenever an

Internet user entered that domain name. Network Solutions did not provide the

translation service (i.e., it did not route the user trying to access the website at a

certain address to that website) or host the website; those functions were



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performed by unrelated companies. Because some of the registered domain names

were allegedly used by their operators to infringe Lockheeds rights, Lockheed

sought to impose secondary liability on Network Solutions. The Ninth Circuit,

equating Network Solutions wholly passive conduct with the role of the U.S.

Postal Service, found no secondary liability.

In contrast, in Fonovisa, defendant Cherry Auction operated a swap meet;

customers paid an entrance fee in order to purchase various merchandise from

individual vendors who paid Cherry Auction for booth space. Cherry Auction

supplied parking, advertised upcoming meets, and retained the right to exclude

vendors for any reason, including trademark infringement. Some vendors sold

counterfeit recordings under Fonovisa trademarks. The Court concluded that the

swap meet can not disregard its vendors blatant trademark infringements with

impunity (76 F.3d at 265), and therefore refused to dismiss the contributory

infringement claims. Indeed, providing trademarked keywords and then looking

the other way, despite having the ability to prevent, monitor, and stop infringing

activity by the purchasers of the keywords, is precisely the type of willfull[]

blind[ness] that other courts have found to establish contributory infringement.

Hard Rock Cafe Licensing Corporation v. Concession Services, Inc., 955 F.2d

1143, 1149 (7th Cir. 1992); see also Symantec Corp. v. CD Micro, Inc., 286 F.

Supp. 2d 1278 (D. Ore. 2003).



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Courts also routinely find that when a party actually places the infringing

mark on goods sold by another party, the first party will be liable for contributory

infringement. See, e.g., H-D Michigan Inc. v. Bikers Dream Inc., 48 U.S.P.Q.2d

1108 (C.D. Cal. 1998), affd in relevant part, 230 F.3d 1366 (9th

Cir. 2000)

(manufacturer who places mark on motorcycles is contributorily liable for

trademark infringement even though it does not sell to public); G.H. Bass & Co. v.

Wakefern Food Corp., 21 U.S.P.Q.2d 1862 (S.D.N.Y. 1991) (distributor

contributorily infringed goods by delivering infringing goods to retailers). When

both the idea to associate the advertisement with the trademarked keyword, and the

likely consequent association in consumers minds, are created not by the

advertiser, but by a keyword-based advertising service such as Google, which

supplied the means and facilities and the idea to do so, liability should attach4.

B. That An Online Keyword-Based Advertising Service Can Be Used to

Create and Post Lawful Advertisements Does Not Insulate It From Its

Otherwise Infringing Conduct

Google argued below that because AdWords is capable of generating lawful

advertisements, the overall program cannot itself be unlawful. That argument

echoes the concept of substantial non-infringing uses which arose in the

4Not only does Google create the idea to associate the advertisement with the

trademarked keyword, but because of its detailed knowledge of the entire

AdWords advertising scheme, Google knows the value of that association with

sufficient certainty to estimate the bid price that will be needed to secure the

specific keyword.



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copyright context in the 1984 Betamax case, Sony Corp. v. Universal City

Studios, 464 U.S. 417, 442 (1984). In that case, the Supreme Court found that

Sony, the manufacturer of the then-prevalent VCR, did not have secondary

copyright liability for the illegal copying of television programming by users of the

VCR, because it could be used for a substantial number of perfectly legal purposes

(the great time-shifting vs. library-building debate). But as the Supreme Court

made clear some two decades later in Metro-Goldwyn-Mayer Studios Inc. v.

Grokster, 545 U.S. 913 (2005), that a machine or service (or tool, as here) has

substantial non-infringing uses does not end the analysis: This view of Sony,

however, was error, converting the case from one about liability resting on imputed

intent to one about liability on any theory. Id. at 934.

As the Grokster Court explained, nothing in Sony requires courts to ignore

evidence of intent if there is such evidence, and the case was never meant to

foreclose rules of fault-based liability derived from the common law. Id. at 934-

35. Similarly, as both the Supreme Court and this Circuit have repeatedly

recognized, Lanham Act claims must be analyzed under the judicially created

doctrine of contributory trademark infringement, derived from the common law of

torts. Georgia Pacific, 618 F.3d at 449, citing Inwood, 456 U.S. at 843-54.

Therefore, this Court should look to the factors the Grokster Court identified, by

analogy, to frame the analysis of secondary liability in this case.



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In Grokster, defendants Grokster and StreamCast were not merely passive

recipients of information about infringing use. 545 U.S. at 923. Rather,

StreamCast marketed its service as the best Napster alternative; Grokster touted

its ability to provide particular copyrighted materials; both presumably did so,

according to the Court, in order to attract users of a mind to infringe. In this case,

Google offers trademarks as keywords through its AdWords program, suggests that

advertisers use particular trademarks or variants of them through its Keyword

Tool, and then displays the ad. The Grokster Court stated: the classic instance of

inducement is by advertisement or solicitation that broadcasts a message designed

to stimulate others to commit violations. Id. at 937. This is just such a classic

case.

The Grokster Court relied not only on defendants marketing materials, but

also on their fundamental business models: it held that by reason of their inherent

structure, Grokster and StreamCast had the intent to promote infringement.

Although they received no revenue from users of their free software (just as, here,

the online keyword-based service does not receive revenue from users of its web

search), Grokster and StreamCast generated their income by selling advertising

space (just as the online service does). There, the more users, the more advertisers,

the more profit; here, the more advertisers, the more click-through, the more profit.

The Court explained that [t]his evidence alone would not justify an inference of



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unlawful intent, but viewed in the context of the entire record its import is clear.

Id. at 940. So, too, here: while profit motivation alone is not enough to imply

secondary liability, when coupled with the other factors enumerated herein, the

import of the intent to induce becomes clear.

Equally important to the present analysis is the Grokster Courts conclusion

that [w]hen a widely shared service or product is used to commit infringement, it

may be impossible to enforce rights in the protected work effectively against all

direct infringers, the only practical alternative being to go against the distributor of

the copying device for secondary liability on a theory of contributory or vicarious

infringement. 545 U.S. at 929-30. The exact same is true here: trademark owners

such as amici cannot realistically, in the context of the Internet, police all misuses

of their brands. While it is also no doubt true that online keyword-based

advertising services cannot police all trademark infringements generated by online

searches, that is not what amici seek; rather, they seek to compel those services to

take actions that are well within their control to guard against infringement. This is

particularly true where, as here, the keyword-based advertising service knows who

is bidding on trademarks; knows whether the bidders are the trademark owners;

and has the ability to determine whether such bidders are resellers or using those

trademarks for First Amendment-protected purposes. In Googles case, it can

and previously did weed out all trademarks from its AdWords program.



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Consequently, strong policy reasons augur in favor of compelling such keyword-

based advertising services to do what they clearly can do to prevent infringement.

For all of these reasons, the fact that trademarked terms can at times be used

by third parties lawfully as, for instance, descriptive nominative fair uses or for

comparative advertising purposes, should be of no moment. Comparative

advertising may and often does have a salutary effect on competition, but there is

nothing beneficial about facilitating the sale of counterfeit goods, particularly if

consumers have reason to believe they are getting what they searched for.

C. The Court Below Erroneously Limited its Contributory Infringement

Analysis to Counterfeiters

The court below opens its discussion of secondary liability by saying: [T]he

Court finds that no reasonable trier of fact could find that Google intentionally

induces or knowingly continues to permit third party advertisers selling counterfeit

Rosetta Stone products to use the Rosetta Stone Marks in their Sponsored Link

titles and advertisement text. Op. 32. From the outset, the court limited its

inducement analysis to advertisers selling counterfeit Rosetta Stone products.

Indeed, the seven pages the court devoted to contributory infringement discuss

only counterfeiters.

But counterfeiters are by no means the only advertisers who can be primarily

liable for trademark infringement and can unlawfully trade upon amicis

trademarks and, in so doing, confuse the consuming public. While the district



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court considered whether Google is responsible for direct infringement, it did not

even address whether third parties (including counterfeiters and others, such as

companies that purchase the trademarks of their competitors as AdWords or like

tools) are liable for primary infringement. The courts likelihood of confusion

analysis on direct infringement correctly focused on whether consumers were

likely to be confused by Google as to source or origin by reason of Googles sale

of keywords and the resultant ads. But that is not the same as assessing whether

AdWords customers engaged in direct infringement such as to support a secondary

liability claim against Google.

The likelihood of confusion analysis may well be quite different when

viewed from the perspective of direct liability of the advertiser. For example, the

courts analysis of intent (Op. at 18-21) a key factor considered only Googles

intent to confuse. The question of whether a keyword-based advertising service

such as Google does or does not intend to confuse the buying public by allowing

one company to buy another companys name as an AdWord is a different question

from whether the purchasing company intends to confuse in this same transaction.

For example, in Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009),

multiple competitors of Rescuecom (an on-site computer servicing company)

purchased the trademarked name Rescuecom as an AdWords keyword.

Certainly the level of intent on the part of those competitors (who did not even



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arguably play a passive role) differed significantly from that of Google. Similarly,

in Parts Geek, LLC v. U.S. Auto Parts Network, Inc., No. CIVA 09-5578, 2010

WL 1381005 (D.N.J. Apr 1, 2010), defendant U.S. Auto Parts purchased the

AdWords Parts Geek in order to advertise its own web site. And it should come

as no surprise that when one conducts a Google search of Tiffany, the first

Sponsored Link is for one of Tiffanys direct competitors, Bulgari. See Appendix

B. To say that these examples are just a byproduct of allowing companies like

U.S. Auto Parts to bid for whatever words they want to select to advertise their

products is a gloss: it is part and parcel of the business model of the online

keyword-based advertising service, and its the very way that Google attracts (and,

in some cases, compels)5

so many companies to bid for AdWords.6

5The structure and scope of the AdWords marketplace has a perverse

consequence to some trademark owners, including some amici. Because (i)

Google controls almost 70% of the domestic search market; (ii) the Internet is

increasingly a venue advertisers must exploit or risk demise; and (iii) the AdWords

program not only offers up the right to use trademarks for sale to the highest

bidder, but encourages all comers to bid; many trademark owners feel that they

have no practical choice but to bid on their own trademarks and may even be

forced to consider bidding on their competitors trademarks, just to protect their

own goodwill and to stay afloat in the competitive marketplace.6

See also FragranceNet.com, Inc. v. FragranceX.com, Inc., 679 F.Supp.2d 312,

316 (E.D.N.Y. 2010), in which FragranceX.com purchased AdWords including

FRAGRANCENET, FRAGRANCENET.COM, and other variations on

plaintiffs name; FragranceNet.com, Inc. v. Les Parfums, Inc., 672 F.Supp.2d 328

(E.D.N.Y. 2009) (same).



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Accordingly, it was error for the court below to limit its secondary liability

analysis to counterfeiters as that is but one type of primary infringement which

could give rise to such liability.

D. The District Courts Narrow View of Contributory Infringement

Resulted in an Incorrect Analysis of Secondary Liability for

Counterfeiters Advertisements

Under the second prong of the Inwood standard for contributory

infringement, Google is liable for contributory infringement if it continues to

supply its product to one whom it knows or has reason to know is engaging in

trademark infringement. 456 U.S. at 854. The court below again concentrates

only on counterfeiters, as opposed to other types of primary infringers.

1. The District Court Ignored the Facts Demonstrating Googles

Knowledge of Infringements

The district court relied heavily on the Second Circuits decision in Tiffany

(NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010), noting that in that case, eBays

generalized knowledge of infringement of a sellers trademark on its website was

insufficient to impose upon eBay an affirmative duty to remedy the problem. Op.

at 37. But the knowledge of an online keyword-based advertising service like

Google necessarily extends far beyond the knowledge eBay had in that case, and

the role of such a service is materially different from eBays role in its online

auction marketplace.



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The district court made clear that Google was aware of many infringing

advertisements, including 110 advertisements purportedly selling Rosetta Stone

products posted by the same individual (which were seen by Web users on 356,675

different search results pages). Op. at 35. Google continued allowing advertisers

to post, even after being notified of infringements by those very advertisers. Id.

Google and online services like it should further be aware of infringements by the

mere fact of their provision to customers of the very tools that not only make such

infringement possible, but encourage them. It is not clear what further knowledge

a court could or should require a trademark owner to demonstrate. If a party is

informed of infringing activity and continues to permit such activity, that must rise

to the level of contributory infringement.

The district court goes on to state that Google informs them [advertisers]

that they are responsible for the keywords selected and for ensuring that their use

of the keywords does not violate any applicable laws. Op. at 35. But the Seventh

Circuit did not find analogous facts persuasive in Hard Rock, where the fact that a

flea market posted signs prohibiting vendors from selling illegal goods was

deemed insufficient, given that defendant did not examine vendors wares before

market, and any examination of those wares thereafter was, according to the court,

cursory. The same can be said where a keyword-based advertising service hosts



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advertisements for counterfeit goods: simply posting an electronic sign

prohibiting them should not be deemed enough to evade liability.

The district court similarly relies on technological limitations when it says

[t]here is little Google can do beyond expressly prohibiting advertisements for

counterfeit goods, taking down those advertisements when it learns of their

existence, and creating a team dedicated to fighting advertisements for counterfeit

goods. Op. at 37. The court again analogizes to Tiffany v. eBay, and posits that

Googles hands are tied here just as eBays were in that case. Id. But plaintiff in

eBay explicitly did not claim inducement: (Tiffany does not argue that eBay

induced the sale of counterfeit Tiffany goods on its website id. at 106) so eBay

does nothing to diminish the inducement arguments above. Further, the court

below relied on Googles policy instead of its actual practice, i.e., [i]n fact, it is in

Googles own business interest, as a search engine, not to confuse potential buyers

of Rosetta Stones products (Op. at 20), because it knows that those

advertisements can create a bad experience for web users (id. at 37). Once again,

the court confined its analysis of the bad experience to resultant purchases of

counterfeit goods, ignoring a host of other potential direct infringements. Sending

a consumer to the U.S. Auto Parts web site when s/he searches for Parts Geek

(see Parts Geek, 2010 WL 1381005, supra) will not necessarily cause a bad

experience; s/he may just end up purchasing the competitive product. Parts Geeks



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goodwill will have been exploited by U.S. Auto Parts with the online

keyword-based advertising services complicity but that does not provide any

disincentive to that service.

The district court opinion also states that some advertisers have used

loopholes in Googles programming to create Sponsored Links that deceive and

misdirect Googles users to websites that sell counterfeit RS products or suggest to

consumers a connection to RS that does not exist. Op. at 12. This casts the

problem of advertisers using keywords to suggest to consumers a connection

that does not exist as something perpetrated by a devious few. But as the spate of

litigation between competitors, one of whom purchases the others trademark as an

online search keyword indicates, this is more than a mere loophole utilized by the

fringe.7

Either Googles technological tool is not working, or Google is not

using it.8

7See supra at pp. 19-20; n.5; see also Morningware, Inc. v. Hearthware Home

Products, Inc., 673 F.Supp.2d 630 (N.D.Ill. 2009) (defendant purchased

Morningware as AdWord); CollegeSource, Inc. v. AcademyOne, Inc., No. 08-cv-

1987, 2009 WL 2705426 (S.D.Cal. Aug 24, 2009) (allegation that defendant

purchased plaintiffs trademarks, including Collegesource and Career Guidance

Foundation); Allstar Marketing Group, LLC v. Your Store Online, LLC, 666F.Supp.2d 1109 (C.D.Cal 2009) (defendant purchased AdWords of plaintiffs

trademarks, including Snuggie and Aqua Globes).8

The opinion below also relies on a clear contradiction: it justifies Googles

ability to include trademarked terms in the AdWords program because of this new

technological tool (Op. at 21), but when presented with advertisements that

violate Googles stated policy that the tool is designed to weed out, it absolved



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2. The Decision of the Court Below Places an Unreasonable Burden

on Trademark Owners to Police Their Intellectual Property

If the opinion and reasoning of the district court is not reversed, the courts

will have erected a virtually insurmountable barrier for trademark owners such as

amici who seek to protect their intellectual property in the context of online

advertising programs.

Amici understand that a line must be drawn between scenarios in which an

intellectual property owner bears the lions share of burden of policing and

protecting its property online, and scenarios in which an online keyword-based

advertising service must bear that burden. But as between trademark owners and

such advertising services, the latter are in a far better position to prevent

advertisers from improperly exploiting trademarks. Given that Google knows who

is paying for the use of such marks (and thus whether the advertiser is or is not the

owner of the trademark), and can often determine whether the advertiser is a

reseller or an informational site, it has far more of the necessary information to

determine whether any particular advertiser is an infringer than does the trademark

owner.9

Google because there is no mechanism for eliminating such advertisements (id.

at 37).9

In contrast, trademark owners must, through either manual or technical scans,

locate the sites selling counterfeit goods or otherwise infringing their marks, which

is a labor-intensive process, particularly given Googles geotargeting, i.e.,

locally varying Sponsored Links.



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Nor would placing the onus solely on trademark owners like Rosetta Stone

and the amici to police trademark infringement in online advertising programs

serve the underlying public purpose of the Lanham Act, i.e., preventing consumer

confusion. Even with a diligent policing mechanism, trademark owners can only

inform keyword-based advertising services of an infringing advertisement afterthe

advertisement has gone live and has the potential to confuse unwitting consumers,

and even then, the infringing links remain live for some period while the service

investigates the complaint. The services, in contrast, have the ready means to

identify such an advertisement before the damage is done. These facts stand in

sharp contrast to those in eBay. If Tiffany found a listing on eBay for a counterfeit

product, it could inform eBay, who would then remove the listing before the

auction ends, and no counterfeit merchandise would have been sold. But online

keyword searches do not operate on the same timeframe. While an eBay item may

be listed for days, searches happen continuously. Based on the 100,000,000

searches for Rosetta Stone over a six-year period (Op. at 23), this averages to

one search for Rosetta Stone every two seconds. No matter how vigilant

trademark owners policing, they cannot possibly inform keyword-based

advertising services of infringing advertisements before those advertisements are

seen by and have a potentially deleterious effect on the consuming public.



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CONCLUSION

The district courts decision, if left in place, would cause great harm to

trademark owners, not merely because of its effects on the parties involved, but

because it would be an open invitation to others both other keyword-based

advertising services and purchasers of competitors trademarks as keywords to

engage in wholesale in the same or similar practices. While online advertising is

an important canvas for all types of businesses, it cannot be a free-for-all, and it

should not be immune from the law that protects trademark owners and consumers

in other media. Traditional trademark law and policy require that web sites (like

others) not foster infringement. Amici recognize that the mere existence of an

online advertising platform does not imply inducement or infringement on the part

of that platform. But when such a platform provides the tools for and means of

infringement like Google does here, secondary liability must attach, lest trademark

owners will be stripped of their goodwill and online consumers confusion will

increase manifestly.

Accordingly, the district courts order should be reversed.

Dated: November 1, 2010

Respectfully submitted,

DAVIS WRIGHT TREMAINE LLP

By: /s/__Marcia B. Paul________________



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Marcia B. Paul

Kevan Choset

Daniel P. Reing

Attorneys for Amici Curiae

Carfax, Inc., Harman International

Industries, Incorporated, The Media

Institute, Viacom Inc. and Blues Destiny

Records, LLC

BROOKS KUSHMAN P.C.

By: /s/__Mark S. Sparschu______________

Mark S. SparschuAttorneys for Amicus Curiae

Ford Motor Company



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APPENDIX A

Google Keywords Tool Search Results for cola



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APPENDIX B

Google Search Results for tiffany



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27DWT 1 5833904v9 0061172-000026

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-2007 Caption: Rosetta Stone Ltd. v. Google Inc.

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(E) OR 32(A)

Certificate of Compliance With Type-Volume Limitation,

Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R.

App. 28.1(e)(2) or 32(a)(7)(B) because:

[Appellants Opening Brief, Appellees Response Brief, and Appellants

Response/Reply Brief may not exceed 14,000 words or 1,300 lines; Appellees

Opening/Response Brief may not exceed 16,500 words or 1,500 lines; any Reply or Amicus Brief may not exceed 7,000 words or 650 lines; line count may be used

only with monospaced type]

this brief contains 5,401 words, excluding the parts of the brief

exempted by Fed. R. App. 32(a)(7)(B)(iii), or

this brief uses a monospaced typeface and contains _____ [state the

number of] lines of text, excluding the parts of the brief exempted by

Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

[14-pointfont must be used with proportional typeface, such as Times New Roman

or CG Times; 12-point font must be used with monospaced typeface, such as

Courier or Courier New]

this brief has been prepared in a proportionally spaced typeface using

Microsoft Word in 14-point Times New Roman; or

this brief has been prepared in a monospaced typeface using _____[state name and version of word processing program] with ______

[state number of characters per inch and name of type style].

Dated: November 1, 2010 /s/ Marcia B. Paul


Harman International Industries,



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28DWT 1 5833904v9 0061172-000026

Incorporated, The Media Institute,

Viacom Inc. and Blues Destiny

Records, LLC

/s/ Mark S. Sparschu

Counsel for Amicus Curiae Ford Motor

Company



34/40

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A E [ S U Y _ T Q E Y ` ] Y E R O E h h h h h h h h h h h h h h h h h E Y ` S E T R U S d R _ O d E W R [ b V S O Y E n ] X E X S U ^ S W E R O E ] P P E \ ] U Y _ S X E R U E Y ` S _ U E[ R b O X S P E R T E U S [ R U W E Y ` U R b d ` E Y ` S E H p C H K E X Q X Y S V E _ T E Y ` S Q E ] U S E U S d _ X Y S U S W E b X S U X E R U c E _ T E Y ` S Q E ] U S E O R Y c E Z Q E

X S U ^ _ O d E ] E Y U b S E ] O W E [ R U U S [ Y E [ R \ Q E ] Y E Y ` S E ] W W U S X X S X E P _ X Y S W E Z S P R n i E

EEE

EEEEEEh h h h h h h h h h h h h h h h h h h h h h h h h h h h h h h E h h h h h h h h h h h h h h h h h h h h h h h h E

E E E E E E o X _ d O ] Y b U S q E E E E E E E E E E E E E E E E o W ] Y S q



39/40

0 1 2 3 0

4 4 4 4 4 4 4 5 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 6

7 8 9 7 8 9

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 1 0 5

9 7 0 0 0 2 0

5

9 1 5 0 7 8 9 5 3

1 3

0 0 5 8 1 0 ! " # $ $ % ! & ' ! & ! ( ' & $ $ )

6

* + , - . / . * - + 6 / 6 + , . * + 6

6

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 0 0 0 0

0 5

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4

0

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= < > ? @ A B C @ > D E > F @ G H

< < :

I J = K L L @ > M L J N K > O L P E > Q E > R J J S H K T > U N B EV C @ B J W > U N B E > X W C B G =

Y

Y

Z @ L C J N @ H > X W G = K W K N L = T > U N B E T > [ \ C B \ > C = > ] A C Q @ L K H ^ > \ K H P > _ ^ > M G W N K A > I K P = L J N K T > \ J H P = > Q J L C N S > B J N L A J H > J ` > V C @ B J W > U N B E

a

a

a

b J G N = K H > ` J A > X ] ] K H H @ N L > I J = K L L @ > M L J N K > O L P Eb H C ` ` J A P > ? E > M H J @ N? C L B \ K H H > M E > c L L C N S K Ad K N N C ` K A > O E > M ] @ e C @ N JM f @ P P K N > X A ] = > M H @ L K > ? K @ S \ K A > g > h H J W > O O F i i > Z K [ > j J A f > X Q K N G K T > Z E k Ek @ = \ C N S L J N T > l b > : m > > > > > b J G N = K H > ` J A > X ] ] K H H K K > R J J S H K > U N B E? @ A S @ A K L > ? E > b @ A G = Jn G C N N > c W @ N G K H > o A p G \ @ A L > g > M G H H C Q @ N T > O O Fm m m > q [ C N > l J H ] \ C N > l A C Q K T > m L \ > h H J J AI K P [ J J P > M \ J A K = T > b X > r i s md J N @ L \ @ N > l E > h A C K P K Nt P C N T > h K H P W @ N > g > F K L L H K W @ N T > F E b Er u : > O K K > v C S \ [ @ ^ T > M G C L K > >

h @ C A ` @ w T > V X > : : u



40/40

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z ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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z ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ | ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~


Carfax et al Amicus Brief in Rosetta Stone v Google

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