EFF Asks Judge to Protect Free Speech in ‘Sponsored Links’ Suit

Michael Hayes
NEW YORK — In a case that pits trademark holders against search engine giant Google, the Electronic Frontier Foundation has sided with the Mountain View, Calif.-based technology behemoth, telling the 2nd U.S. Circuit Court of Appeals that restricting the purchase of sponsored links on trademark grounds has a chilling effect on free speech online.

In the case at bar, computer repair firm Rescuecom sued Google in 2004, asking the trial court to bar the search engine from selling sponsored links that contain the company’s trademark. Google won its motion to dismiss in that case, when U.S. District Judge Norman Mordue wrote, “[the] defendant's internal use of plaintiff's trademark trigger sponsored links is not a use of a trademark because there is no allegation that defendant places plaintiff's trademarks on any goods, containers, displays or advertisements, or that its internal use is visible to the public.”

Rescuecom appealed that decision, which prompted the EFF to file its amicus brief raising a free speech argument.

“The Internet has brought together speakers of many kinds — some competing with trademark owners, others criticizing them, still others simply referring to them while discussing other subjects or products,” EFF staff attorney Corynne McSherry said. “Services like Google's 'sponsored links' help people with something to say reach those who might be interested in hearing it.”

Google’s “sponsored links” feature allows anyone to buy advertisements attached to certain search terms. When users run a particular query, the appropriate sponsored links appear next to the search results.

But Rescuecom attorney Edmund Gegan said the practice infringes on the rights of trademark holders because it creates unnecessary confusion on the part of consumers.

“A consumer browsing through a magazine or a market's shelves expects products or advertisements near each other to potentially be competitive,” Gegan said. “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.”

But EFF staff attorney Jason Schultz disagreed, saying that trademarks online are more than simply identifiers for the search engine index.

“They are essential navigation tools and vehicles of expression,” Schultz said. “Quashing this speech goes against both the law and the public interest.”

As a concrete example in support of its argument, the EFF began its brief with a discussion of a recent campaign by farm workers to pressure McDonalds to raise its wages. The EFF cited a New York Times article on the effort that concluded one of the ways the group raised its profile was by purchasing “sponsored links” for the search term “McDonalds.”

“This is an example of the important free speech activity that search engines help facilitate,” the EFF brief said. “Fortunately Google will also display additional information a user might not initially seek but sill find valuable via its ‘sponsored links’ [service].”

The brief can be read here.

The case is Rescuecom vs. Google, 06-4881-CV.