The hard part for Texas-based Firepond will be to convince a judge to certify the suit as a class action.
Firepond, a software company in Texas, has filed a class-action suit against Google claiming its AdWords service profits by encouraging companies to impinge on one another's trademarks.
Firepond claims that Google's sale of its brand name to its competitors amounts to trademark violation because people searching for "Firepond" end up clicking on the sponsored links of other companies, "thereby confusing Internet users and diverting a percentage of such users from [Firepond] and enjoying and benefiting from all the goodwill and 'buyer's momentum' associated with" its trademark, the suit read.
That objection alone wouldn't make the case special, since many AdWords advertisers have sued Google for alleged trademark infringement. What's unique in this filing is that the plaintiff is seeking class-action status for the suit, which it has brought on behalf of itself and, potentially, other aggrieved AdWords advertisers in the state of Texas.
Eric Goldman, an expert on Internet law and faculty member at Santa Clara University's School of Law, said the case may be the first attempt to bring a class-action suit against Google's AdWords program. He said Google was the target of an earlier class-action case, led by Vulcan Gulf, which was denied class-action status. But that lawsuit was brought against Google's AdSense for Domains program, not AdWords.
Goldman argued Firepond faces an uphill battle in its quest to convince a judge to certify the case as class action, a necessary step under federal court procedure rules.
"Trademark class-action lawsuits are rare because of the factual inquiry required to resolve each alleged trademark infringement," Goldman said. "I can't give an exact percentage, but the odds of class certification are low."
If the lawsuit does move forward, similar plaintiffs could join the suit, making it a potentially costly battle for Google.
When asked about the suit, a spokesperson for Google replied, "We haven't yet been served, so we can't comment until we've had a chance to review the complaint."
Zach Rodgers contributed reporting
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Douglas Quenqua is a journalist based in Brooklyn, NY who writes about culture and technology. His work has appeared in The New York Times, Wired, The New York Observer, and Fortune.
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