Posted May 14, 2009 9:25 am by with 8 comments

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I’ve honestly lost track of the number of trademark lawsuits brought against Google, but how about we add one more to the pile?

Firepond is stepping up to the plate, but what’s interesting about its approach is not its claim that AdWords allows competitors to bid on its trademarks–although that is in there–but that the company is seeking class-action status.

In papers filed this week in federal court in the eastern district of Texas, software development company Firepond seeks class-action status on behalf of all Texas trademark holders whose names have been used to trigger search ads…this appears to mark the first time [Google] has faced a potential class-action suit about the issue.

Firepond faces two challenges here. First, the odds are against them that they’ll even with the trademark case–previous courts have sided with Google. Second, it’s going to be nye on impossible to get a judge to approve class action status. I’ve looked at this for other issues–defamation/copyright–and there’s just no clear way forward. The biggest hurdle is that a class action lawsuit needs multiple plaintiffs with substantially the same claim. In the case of trademarks, each plaintiff will likely have their own issues–in other words, not every plaintiff will have their trademark violated by AdWords in the exact same way.

I’m not a lawyer, but it appears those that have passed the bar exam, tend to agree:

Eric Goldman, director of the High Tech Law Institute at Santa Clara, says it’s unlikely that the court will allow the class-action. "Every trademark is different, the identity of each competitive (or other) advertiser is different, every AdWords ad copy is different, the informational needs of every trademark owner’s customers are different"

Of course, that doesn’t mean you shouldn’t try. Hitting a home run is hard, but that doesn’t mean you shouldn’t take a swing, right? And, the first company that successfully achieves class action status will get the attention of marketers everywhere–and Google!. Go on to win such a case, and Google loses a healthy chunk of its revenue.

This will be one to watch.

PS. I just checked Google and didn’t see any AdWords ads for "Firepond" do you?