California Court Enjoins Canadian Court’s Global De-listing Order to Google as Contrary to CDA

6 12 2017

In a decision that sets up a potential international comity showdown, a California district court granted Google’s request for a preliminary injunction preventing enforcement in the U.S. of a Canadian court order that compelled Google to globally de-list certain search results of a former distributor that had allegedly used its websites to unlawfully sell the defendant Equustek Solutions’s (“Equustek”) intellectual property. (Google LLC v. Equustek Solutions Inc., 2017 WL 5000834 (N.D. Cal.  Nov. 2, 2017)).

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The content in this post was found at https://newmedialaw.proskauer.com/2017/11/09/california-court-enjoins-canadian-courts-global-de-listing-order-to-google-as-contrary-to-cda/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Interesting Tidbits From FTC’s Antitrust Win Against 1-800 Contacts’ Keyword Ad Restrictions

30 11 2017

Over the course of about a decade starting in 2004, 1-800 Contacts entered into over a dozen settlement agreements with competitors, most of which mutually restricted both parties from buying keyword ads triggered to their competitor’s trademarks and sometimes requiring the use of negative keywords. The FTC challenged this practice as anti-competitive via the FTC’s administrative adjudication process. In a behemoth 215 page opinion peppered with annoying redactions, the ALJ agrees with the FTC. The opinion’s summary:

Complaint Counsel has met its burden of proving that the Challenged Agreements unreasonably restrain trade in violation of Section 5 of the FTC Act. Contrary to Respondent’s argument, FTC v. Actavis, 133 S. Ct. 2223 (2013), is not authority for the proposition that trademark settlement agreements are immune from antitrust scrutiny.

The evidence in this case demonstrates that the advertising restraints imposed by the Challenged Agreements cause harm to consumers and competition in the market for the sale of contact lenses online. This is sufficient to establish Complaint Counsel’s prima facie case that the agreements are anticompetitive. The evidence fails to prove that the Challenged Agreements have countervailing procompetitive benefits that outweigh or justify the demonstrated anticompetitive effects of the Challenged Agreements. Accordingly, the Challenged Agreements violate Section 5 of the FTC Act.

This opinion is chock-full of goodies. Normally I’d recommend reading the whole thing. However, at a hefty 215 pages, it would take you a long time to do so. Here are some of the highlights I saw.

 

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Case citation: In the Matter of 1-800 Contacts, Inc., Docket No. 9372 (FTC Off. of Admin. L. Judges Oct. 27, 2017)

Case library: The FTC maintains a page with all of the public filings in this case. Here’s a selected library of materials:

 

The content in this post was found at http://blog.ericgoldman.org/archives/2017/11/interesting-tidbits-from-ftcs-antitrust-win-against-1-800-contacts-keyword-ad-restrictions.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Amazon Defeats Lawsuit Over Its Keyword Ad Purchases–Lasoff v. Amazon

3 02 2017

Lasoff owns Ingrass, which makes artificial turf. He claims he’s losing business to “cheaper, counterfeit” versions of Ingrass. (The opinion uses the term “counterfeit,” though it probably means knockoffs). He objects to the fact that Amazon runs keyword ads for “Ingrass” at the search engines and in promotional emails that are algorithmically programmed for remarketing (i.e., promoting products the email recipient viewed on Amazon but didn’t buy). The promotional email ad copy comes from third party sources. Prospective customers who saw these ads for “Ingrass” were directed to the Amazon product pages containing listings from the alleged counterfeiters.

Section 230

Citing the Ninth Circuit’s ccBill v. Perfect 10 ruling, the court cleans out all of the state law claims (unfair competition, state trademark infringement, tortious interference, negligence and unjust enrichment) due to Section 230. The court says:

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Case citation: Lasoff v. Amazon.com, (W.D. Wash. Jan. 26, 2017)

 

The content in this post was found at http://blog.ericgoldman.org/archives/2017/02/amazon-defeats-lawsuit-over-its-keyword-ad-purchases-lasoff-v-amazon.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



More Evidence Why Keyword Advertising Litigation Is Waning

4 01 2017

A venerable and classic Internet Law question: when a consumer uses a trademark as a search term, what are they looking for? If they are seeking the trademark owner–and only the trademark owner–then competitive keyword advertisers may encroach on the trademark owner’s goodwill and “steal” the trademark owner’s customers (and the search engine/ad network may be profiting from this “theft”). In contrast, if consumers have heterogeneous search objectives when using a trademarked search query, trademark law would overreach–in ways that would significantly harm social welfare–if it prevented ads from parties other than the trademark owner.

Nearly a decade ago, I argued–without empirical proof–that searchers had heterogeneous search objectives when using trademarks in search queries, which made competitive keyword advertising both permissible and desirable. Since then, some empirical studies have supported this argument, especially the Franklyn/Hyman study; see also the Tucker/Bechtold study.

A new empirical study, Jeffrey P. Dotson et al, Brand Attitudes and Search Engine Queries, 37 Journal of Interactive Marketing 105 (2016), provides further support for this conclusion. The study is based on a rich dataset: a time-series of actual Google search queries in the cellphone and automotive categories by opted-in consumers. The authors don’t consider the legal questions, but their conclusions buttress the perspective that consumers have heterogeneous motivations when they use trademarks in their search queries.

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The content in this post was found at http://blog.ericgoldman.org/archives/2016/12/more-evidence-why-keyword-advertising-litigation-is-waning.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



FTC sues 1-800 Contacts for attacking competitors’ search ads

13 08 2016
The Federal Trade Commission has sued online retailer 1-800 Contacts, saying the company illegally restrained competitors from buying search advertisements. It’s a dramatic move that could mold the shape of online trademark law for years to come.

 

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The content in this post was found at http://arstechnica.com/tech-policy/2016/08/ftc-sues-1-800-contacts-for-attacking-competitors-search-ads/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.