AdSense for Domains - Potential Class Action

David Naffziger Nov 5, 2008

A lot of press has been generated over the last few weeks about Google's AdSense for Domains programs and a potential class action suit that claims Google is assisting trademark violation. I've seen estimates that Google makes anywhere between several hundred million to a billion dollars from its domain parking program.

There are two reasons why the Vulcan Golf lawsuit has received a lot of attention recently:

  • McAfee Security Journal Report(pdf): Ben Edelman, the Harvard Law professor that championed the fight against spyware, identified 80,000 domains typosquatting on the top 2,000 websites (I actually think the 80K number is low).
  • Upcoming decision on class action: Ben and several other lawyers are seeking to turn the Vulcan Golf case into a class action lawsuit. A decision is expected as early as mid-November.

While many of the domains in the program are generic in nature, there are certainly a large number of domains that are typos of existing websites or brands.

David Kravets at Wired's Threat Level blog summarizes the two sides very crisply:

But Google attorney Maria Moran says Edelman's allegations are "misguided," and that Google is doing nothing illegal because it "merely distributes third-party advertisements."

Google is immune from liability, she adds. "Google's sweeping trademark protection policies provide that Google will immediately remove any allegedly infringing domains from its AFD program at the request of the trademark holder."

Edelman, however, said Google is attempting to confuse two laws: the Anti-cybersquatting Consumer Protection Act with the Digital Millennium Copyright Act.

The DMCA "safe harbor" provision protects sites from claims that they host copyright infringing material if that material was put there by users and if the sites remove material upon notice from copyright holders. Google relies on the safe harbor provisions to avoid liability for videos posted on its YouTube site, for example.

But Edelman says Google is wrong to try to invoke a notification safe harbor as a defense to typo-squatting.

"There is no similar safe harbor doctrine as to trademark infringement or typo-squatting," Edelman says.

I'm greatly encouraged by Edelman's participation in the suit as it is more likely that the lawsuit will end with a final judgement or public settlement. Google's approach in many of the trademark-related search advertising lawsuits has been to silently settle many of them. The net result has been confusing and non-existent legal precedents.

Topics: Affiliate Marketing, Trademark and Law, Paid Search

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