That's a question Google and Rescuecom has been litigating since September 2004. In September 2006, the judge in the case granted Google's motion to dismiss, but Rescuecom appealed.
Earlier this week, Google filed a brief in the ongoing case that makes a clear and compelling argument for why Google's sale of trademarked search keywords as ad triggers is legitimate.
Michael H. Page, an attorney representing Google on behalf of Keker & Van Nest LLP, asserts that businesses associate their products with competitors all the time and that doing so doesn't create confusion in the minds of consumers -- which is what trademark law aims to prevent.
"Generic brands are placed next to known brands on store shelves for the express purpose of diverting customers from the brand they are seeking to another, and their manufacturers pay for that placement," explains Page in the brief. "Advertisers deliberately select magazine ad placements next to articles about their competitors. ... All manner of companies pay for coupon placements selected based on a customer's purchase of their competitors' products. And so on. Of course they are seeking to 'hijack' or 'divert' consumers who have indicated an interest in their competitors' products. That's the point of contextual advertising -- to target ads at consumers who are actively interested in your type of product, rather than indiscriminately at the world at large."
But none of these examples, Page points out, falsely identifies the source of goods or services and thus does not represent a violation of trademark law. Google isn't using the term "Rescuecom" as actual text in its ads. It's merely allowing advertisers to be seen when a searcher is inquiring about a competitor.
Rescuecom's counterargument doesn't quite seem so strong. Rescuecom's attorney, Edmund J. Gegan, suggests that consumers inured to cutthroat competition at the mall are essentially clueless online and see no distinction between paid placement on a search results page and organic search results.
"A consumer browsing through a magazine or a market's shelves expects products or advertisements near each other to potentially be competitive," says Gegan in the Rescuecom brief. "However, when an Internet user submits a search query, such as 'Rescuecom,' to an Internet Search Engine, the user expects the search results to be relevant to the query, and to be placed in order of relevance, with the results at the very top being the most relevant."
The online world may indeed be complex, but no more so than real life. What Rescuecom wants is a lower standard for consumer confusion online than offline. Bet on Google to win this one.