Google may turn over information about third-party keyword purchases after being subpoenaed by a recreational flooring company.
Santa Clara University law professor and tech law blogger Eric Goldman alerted readers to the subpoena in a recent blog post last week, warning that this sort of legal action could give businesses access to private information about the advertising habits of competitors.
"Were this to become commonplace, it could completely change the current equilibrium with respect to Google's AdWords program," Goldman told The Register.
The subpoena is part of an ongoing District Court case between Rhino Sports and Conner Sport Court International, two companies that sell flooring for athletic facilities, including basketball courts, tennis courts, and baseball batting cages. In 2002, Conner - previously known as Sport Court - sued Rhino for trademark infringement, and a year later, Rhino agreed to an injunction restricting it from using the "Sport Court" trademark "on or in connection with the Internet." That includes internet domain names, sponsored links, and any HTML code, "such as the title or keyword portions of a metatag."
Then, in early May of this year, Conner accused Rhino of violating the injunction, claiming that the company had purchased the "sport court" keyword phrase on Google AdWords.
As Eric Goldman pointed out in an earlier post, Rhino had merely purchased the "broad match" terms "court" and "basketball court," not the specific term "sport court." The court rejected Conner's claim, but Conner has now issued a subpoena to Google, requesting information on "all purchases of 'sport court' as a keyword," "associated cost per click calculations," "estimated ad positions for the keyword," and "search volume trends for the keyword." That includes information about Rhino's AdWords account as well as the accounts of other businesses. That's right: Businesses not involved in the case.
Google did not respond to our request for comment, but it seems that the company will comply with the subpoena - if there aren't complaints to the court. Goldman posted a copy of a letter Google sent to all affected businesses, explaining that information related to their AdWords accounts would be turned over to the District Court unless they file an objection to subpoena.
Goldman, who obtained and posted a copy of the the subpoena (PDF), believes that the case could be a watershed, paving the way for particularly-cunning businesses to weasel information about their competitors from Google and other search sites. "Today, a trademark owner has to bid for their own trademark on Google, and they never quite know what they're bidding against," he says. "But this could give them great insight into how to bid optimally on their trademark." All they have to do, says Goldman, is file a suit and issue a subpoena.
According to Edward J. Naughton, a partner with the international law firm of Holland and Knight who specializes in intellectual property, it is unusual for a company like Google receive a subpoena in a case like this. Typically, he says, a court will ensure that the plaintiff only collect keyword data from the defendant itself, ensuring that other parties are left alone.
Several lawyers we talked to also said they wouldn't be surprised if Google complies with the injunction. "Companies like Google are getting less litigious on these types of issues," says Doug Wolf, co-chair of the trademark group at the Boston-based firm Wolf, Greenfield, and Sacks. "When it's only third-party information involved and there's no clear benefit to them in trying to suppress a subpoena, they'll comply with it."
But both Naughton and Wolf question whether others could use this sort of court action simply to collect data about competitors. "I suppose there's a risk here to businesses, but I think it's pretty small," says Naughton. "It's hard to say that this is going to open the floodgates. In the average case, the court is going to understand the information is competitively sensitive." In the event of a subpoena, the court could also issue a "protective order," which would only allow a company's lawyers to see the subpoenaed information - not the company itself.
Gregory Rutchik, founder of the arts and technology law group, a California-based infringement litigation firm, agrees. "First of all, litigation is incredibly expensive," he says. "But even if a business were willing to spend the thousands of dollars needed to get this sort of information, there's a risk - to the lawyers and to the business - that they'll be sued in return." ®