AdWords = Corrective Advertising Damages

David Naffziger Apr 24, 2008

Thomas O'Toole reviews a recent decision by the District Court in the Punch Clock v Smart Software Development case. The two websites in question (punchclock.com & punch-clock.com).

The case was won by default (the defendant didn't appear). The defendant was found to have infringed the registered punchclock mark in violation of 15 U.S.C. 1114(1)(a) and had violated ACPA. O'Toole highlights the most notable aspect of the case:

The interesting part of the case is the court's discussion of the damages remedy. The plaintiff did not ask to be compensated for lost sales ... Instead, the plaintiff fixed its sights exclusively on the fact that the defendant's Web site ranked higher on Google's search results display and on the Alexa traffic rankings. The plaintiff claimed that it was entitled to "corrective advertising damages" in an amount sufficient to vault its Web site to the top Google's sponsored search results.

So, the plaintiff wanted (and got) damages decided on the cost of buying adWords to ensure the top search position.

O'Toole believes the decision was pretty shaky, particularly since the Adwords buys aren't really corrective - they were historic. However, these arguments can't be raised when the defendant doesn't appear.

Topics: Search Engine Updates, Trademark and Law, Paid Search

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