EFF: Fight Over Google's 'Sponsored Links' threatens Internet free speech

Electronic Frontier Foundation Media Release

For Immediate Release: Thursday, February 22, 2007

Contact:

Corynne McSherry
   Staff Attorney
   Electronic Frontier Foundation
   corynne@eff.org
   +1 415 436-9333 x122

Jason Schultz
   Staff Attorney
   Electronic Frontier Foundation
   jason@eff.org
   +1 415 436-9333 x112

Fight Over Google's 'Sponsored Links' Threatens Internet
Free Speech

EFF Asks Judge to Uphold Key Trademark Ruling

San Francisco - The Electronic Frontier Foundation (EFF)
asked the U.S. 2nd Circuit Court of Appeals today to uphold
an important ruling allowing anyone to purchase Google's
"sponsored links" tied to trademarks, arguing that the
practice is legal under trademark law and provides a vital
means for online speakers to connect with audiences on the
Internet.

Google's "sponsored links" feature allows customers to buy
advertisements attached to certain search terms.  When a
Google user types those terms into the search engine, the
sponsored links appear along with the search results.
However, a company named Rescuecom filed a lawsuit against
Google over the program, claiming that selling sponsored
links for the term "Rescuecom" infringed its trademark.

In an amicus brief filed with the appeals court today, EFF
argues that the sponsored links are not an infringing use,
and in fact promote a vibrant public sphere by helping
online speakers reach a broader audience.  An example cited
in the brief is that of "The Coalition of Immokalee
Farmworkers," a group critical of McDonald's business
practices.  The coalition bought sponsored links attached
to searches for "McDonald's" in order to stimulate debate
and mobilize support.

"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," said EFF Staff
Attorney Corynne McSherry.  "Services like Google's
'sponsored links' help people with something to say reach
those who might be interested in hearing it."

Rescuecom has asked the court to hold that trademark law
regulates virtually any use of search keywords that are
also trademarks.  This would give trademark holders a legal
sword to wield against critics and competitors, as well as
the intermediaries upon which those critics and competitors
rely to spread their message.  But courts have historically
taken care to ensure that trademark restrictions do not
allow markholders to interfere with
Constitutionally-protected free speech.

"On the Internet, trademarks aren't just identifiers.  They
are essential navigation tools and vehicles of expression,"
said EFF Staff Attorney Jason Schultz.  "Quashing this
speech goes against both the law and the public interest."

A judge dismissed Rescuecom's case against Google last
year, but the company is appealing the decision.

For the full brief filed in Rescuecom v. Google:
http://www.eff.org/legal/cases/rescuecom_v_google/EFF_ami...

For this release:
http://www.eff.org/news/archives/2007_02.php#005134

About EFF

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at http://www.eff.org/


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