Google, the search giant, and the Electronic Frontier Foundation, a civil liberties group, filed separate amicus briefs last week in U.S. District Court in New York, in a case that could have long-range effects on the search engine advertising business. The case is 1-800-Contacts.com v. WhenU, a pop-up advertising software company whose keyword-targeted ads are the subject of complaints of copyright and trademark infringement. In December, a District Court judge granted a preliminary injunction that prohibits WhenU from triggering pop-ups when people visit 1-800-Contacts' Web site. The judge said the practice constitutes trademark infringement.
The EFF asserts that in making its decision, the court overlooked the sophistication of Net surfers and common practices in the retail world. "Internet search intermediaries play a pivotal role in helping searchers to accomplish their search objectives, but invariably these intermediaries must use third-party trademarks to do so," according to the EFF. "An overly expansive application of the 'initial interest confusion' doctrine would chill innovation for a wide variety of Internet search intermediaries." For its part, Google has filed its own lawsuit in California, seeking a judge's ruling on whether its search advertising service is legal.