Everyday Google Suit Could Be Competitive Intelligence Headache

  |  July 9, 2007   |  Comments

A trademark infringement suit between Google advertisers raises questions about companies suing for access to competitors' ad data.

Could a company sue simply to have access to a competitor's Google ad data? An ongoing trademark infringement suit between two Google advertisers has some wondering just that. Google has sent out a warning letter to an undisclosed number of its keyword advertisers to inform them of a civil subpoena it received in the case of Rhino Sports. v. Sport Court, and given them until July 19th to respond. If those advertisers do not formally object, Google may give over their ad data to legal authorities.

The letter stems from a trademark and keyword dispute between Rhino Sports and Sport Court whereby the former is accused of buying the keyword phrase "sport court," as well as the broad-matched word "court." As part of the dispute, a subpoena was delivered to Google requiring the company to turn over all references to "sport court" as a keyword, along with cost-per-click calculations, as well as estimated ad positions and search volume trends for the keyword phrase.

A copy of the letter sent by Google to relevant customers was sent out June 28th, and states if the recipients do not respond by the deadline, "Google will assume you do not have an objection to production of the requested information and may provide responsive documents on that date." The letter was posted by Law Professor at Santa Clara University School of Law Eric Goldman on his Technology and Marketing Law Blog.

Of even greater concern than Google sharing otherwise private customer information, believes Goldman, are the implications of the plaintiff in this case, and perhaps others in the future, accessing a tremendous amount of information regarding the Google advertising processes of their competitors by suing competitors.

"We know that Google is the repository of incredibly powerful data, and that makes them a target from lots of people that would like to know what's going on. There are very few circumstances where someone can get such a deep look into a competitors marketing activities," said Goldman. "Google has got all the information in one convenient place....They know how much, and when and what results someone got."

The possibility of Google sharing information on its keyword buyers could be a double-edged sword, depending on how the information is controlled by the courts, according to Michael Bridges, VP of client services for SEMDirector, a search marketing automation software and services provider.

"If the courts get hold of that information to make a determination about the validity of their case, then my personal opinion is that's probably okay. And if they turn around and share that information with the [plaintiff], I don't believe [the defendant] should have to [approve divulgence of its information]," said Bridges. "In this case it would be giving Sport Court a good deal of information about the competition."

Google's letter to its ad clients could be a tactical move. Google may in fact be trying to bolster its case in fighting the subpoena, according to Kevin Lee, executive chairman for Did-it.com, a search marketing firm, and a ClickZ columnist.

"They are trying to shift the burden of responsibility...onto all the advertisers who [could be] potentially impacted by the release of the data. One or more of the advertisers will respond that they are in fact looking for relief for having that data released, and that strengthens Google's position to say no," said Lee. "Google can't make the strong argument on its own behalf, but if the industry says I'd like you to protect my data, then Google can take the higher ground."

Lee also does not believe it's likely that Google will see a rash of court cases and subpoenas where competitors will seek out their rivals' advertising practices, as it's easier and more cost efficient to do so through other means.

"The reality is that most of that information is available from third party vendors...for less money than a lawyer would charge you," said Lee. "Given the fact that [comScore or other third party measurement firms] could get you pretty close to the actual data, and you wouldn't have to engage in potentially ethically dubious behavior, in other words filing a frivolous lawsuit to get the information, I don't see that happening," he said.

Google is no stranger to trademark disputes. Previous keyword-related cases include suits involving Geico, American Blind and Wallpaper Factory, Edina Realty and others.

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Matthew G. Nelson

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