Eric Goldman reports here that Rescuecom has dismissed its lawsuit against Google. Eric strongly suggests this was primarily about Google outlasting a smaller plaintiff with fewer resources, which may well be the case. And although I was pleased when Rescuecom won on the trademark use issue, as I explained in this post from last year, I thought I was through at that point being a fan of Rescuecom.
I had switched sides because I think competitor paid placement, while a “trademark use” (the scare quotes express skepticism of the concept) for infringement purposes, is generally a pro-consumer and non-confusing practice, so I was hoping to see Google win the case on the lack of confusion. Indeed, I was also hoping the Second Circuit might, with the help of Google’s lawyers, do some good work in reining in IIC doctrine, clarifying that competitive and non-confusing use of keywords is never a problem (contra the old meta tag cases).
As it turns out, Rescuecom wants the same thing! And it wants to be in the front line in that battle. Rescuecom is apparently seeking a declaratory judgment supporting its right to engage in competitive keyword advertising, targeting the customers of Best Buy’s Geek Squad.
Way to go, Rescuecom, looks like I’m on your side once again. Best of luck in litigating your way to a more sensible version of online trademark law.