There have been a rash of new lawsuits against Google’s AdWords program including 2 major class-action claims:

• FPX, LLC v. Google, Inc., 2:2009cv00142 (E.D. Tex. complaint filed May 11, 2009) (Class action);
• Soaring Helmet Corp. v. Bill Me Inc., 2:2009cv00789 (W.D. Wash. complaint filed June 9, 2009);
• John Beck Amazing Profits, LLC v. Google Inc. 2:2009cv00151 (E.D. Tex. complaint filed May 14, 2009). (Class action);
• Stratton Faxon v. Google;
• And the ongoing Rescuecom case.

What are the issues for Canadian TM owners in connection with the US class actions? First, the US class actions have yet to be certified, meaning the US lawsuits may not be eligible to proceed as class actions, but if they do, then they could attempt to settle the issue for trade-mark owners across the US (those who do not opt out). Canadian class-actions may also be commenced, if the US class actions are certified, or if the US actions appear to be making headway against Google.  Many trade-mark owners will likely opt out since they won’t want to be tied into litigation over which they have no control.  But there will still be plenty of class members who will happily join a class action against Google in the hopes of getting a portion of the any settlement or damage award.  For trademark owners who opt in, the lawsuit is trying to peg Google with liability and damages and any damages (more likely a settlement of some kind) would be split between the class members. For those who opt in, there is also a risk that they would be bound if the Court finds that Google is not liable, and they would then be stopped from suing Google on their own separate actions against Google or the other defendants based on trade-marks infringement in in keyword advertising.

However, let’s face it: if the class action lawsuit fails, then the chances of anyone suing Google on this issue decrease substantially. Companies who benefit from AdWords and are buyers of TM keywords in their AdWords advertising, are likely to want to opt out of the class. These companies also face the possibility of being sued in future TM infringement litigation if the class actions succeed against Google.

For its part, Google doesn’t seem to be showing signs of backing down – they recently announced that they will allow a group of “special” advertisers to use competitors’ trade-marks to appear right in the ad copy, even if the trade-mark owner objects.

Calgary – 15:00 MST