There are two answers to the question in the headline. Professor Goldman at the Technology and Marketing Law Blog has unofficially named this the ninth lawsuit against Google related to the bidding on trademarked terms as part of the AdWords program. In his post, he notes this complaint is very similar to previous efforts probably because the same law firm representing Rosetta Stone has represented others pursuing Google. You can read some of the official release from Rosetta Stone about the suit here.
When I first read the story, my initial reaction was similar to others: “ho hum another Google Adwords lawsuit.” Then, I remembered a blog post from the past about a trademark issue with Rosetta Stone (maybe it was my catchy headline). As discussed here almost a year ago, Rosetta Stone opted to sue a competitor rather than Google or Yahoo over the same practice. So what happened with that lawsuit?
Not surprisingly, they settled in March of this year and the details of the settlement are sparse. Defendants Rocket Languages and Libros Media denied that they ever used or bid on Rosetta Stone as part of their internet marketing campaigns. Rosetta Stone also sued two individuals who operated language review sites.
Here is the press release from Rosetta Stone about the settlement. Interestingly, the settlement only mentions the monetary damages Rosetta Stone recovered from the two individuals and their agreement not to bid on the trademarked terms. There is no mention of Rocket Languages or Libros Media in the announcement.
Perhaps, Libros Media and Rocket Languages wer not aware others were out there bidding on Rosetta Stone’s terms to sell their product and were therefore dismissed from the suit without having to pay–admittedly, pure speculation. I should say without having to pay Rosetta Stone. The nine-month exercise could not have been a cheap one for Rocket Languages. You can see this article I wrote about ways to try and protect yourself from having your affiliates and others getting you in trouble when they decide to bid on a trademarked term without your knowledge or consent.
Rosetta Stone appears to have taken its legal budget from that case and shifted its focus to Google to sue them for trademark infringement. Sí, otra demanda.
Why aren’t there more of these suits? I can provide one reason based on personal experience. When we send a demand directly to a competitor to stop, they usually do. Sometimes, they don’t even know their marketer is doing it. Sometimes, they determine the minimal traffic is not worth the headache of a lawsuit. Granted, I have not represented a reseller (which brings up additional trademark issues for another day) or someone whose sole source of traffic is from trademarked terms. I am surprised there have not been more suits against them–or maybe they just don’t get the publicity because the suit does not involve Google.