Rosetta Stone, LLC v Google, Inc.
Google allowed the use of trademarks as ad keywords in 2004 and ad texts in 2009. Rosetta submitted 200 complaints about companies buying ads with their trademark in them. It received over 200 complaints about software purchased through the linked ad results which did not work. It brought suit alleging direct, indirect and vicarious infringement, unjust enrichment and mark dilution. The district court granted summary judgment to Google on all counts. The panel reversed as direct infringement holding there was evidence in the record, such as internal Google studies, the customer complaints and Google internal documents showing an awareness of the possibility of infringement which created material question of fact. It reversed on indirect infringement based on the complaints submitted by Rosetta. It reversed on dilution holding the alleged use was covered under the statutes, but, remanded for a determination of when Rosetta’s mark became famous. It affirmed judgment on vicarious infringement as there was no evidence of an agreement to infringe and unjust enrichment as there was no evidence Google owed a duty to pay for the sue of the mark under Virginia law.
