The Virginia Business Litigation Blog

April 4, 2009

Google’s Lucrative Adwords Program May Violate Trademark Rights

Trademark owners take note: whether or not you participate in Google’s Adwords program to advertise your business, your competitors may be using your trademark as a keyword in promoting their competing business. Google not only allows this potentially infringing practice, it encourages it! The company actively and openly sells competitors’ trademarks to advertisers seeking to divert potential customers to the advertisers’ websites.

It remains to be seen, however, how long the courts will permit this practice to continue. On April 3, 2009, a federal appeals court sitting in New York decided to allow a case to go forward in which a computer-repair company called Rescuecom sued Google for trademark infringement. The case is Rescuecom Corp. v. Google, Inc., Case No. 06-4881 (2d Cir.).

The complaint involves two of Google’s programs used in Internet advertising: AdWords and Keyword Suggestion Tool. With AdWords, advertisers purchase keywords relevant to their business. When a purchased keyword is used in a Google search, the advertiser’s ad and link appear on the search results page, either in the right margin or in a horizontal band immediately above the relevance-based (i.e., non-sponsored) search results. The Keyword Suggestion Tool recommends keywords to advertisers. Among its recommendations might be the trademark owned by the advertiser’s competitor.

April 2, 2009

What Is Harassment?

by Lee E. Berlik

So you want to sue your boss for harassment. For years, you have put up with his antics, but now you’ve had enough. He has humiliated you in front of your co-workers, berated you for trivial things, and insulted you. Basically, he is a jerk. But do you have grounds for a lawsuit? Has your boss “harassed” you within the meaning of Title VII of the Civil Rights Act of 1964?

Federal anti-discrimination statutes do not prohibit all harassing behavior. They do not guarantee that your boss will be “nice” to you. They do, however, offer powerful protection against unwelcome verbal or physical conduct based on race, color, religion, sex, gender identification, national origin, age (if you are 40 or older), disability (mental or physical), sexual orientation (depending on the circumstances and jurisdiction), and retaliation against an employee who complains of discrimination, participates in an investigation, or voices opposition to discriminatory practices.

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March 28, 2009

What Is A Trademark?

by Lee E. Berlik

A trademark is a type of intellectual property that generally consists of a distinctive sign or indicator used to identify the originating source of the products associated with the trademark, so that consumers can distinguish the trademark owner’s products from those originating from other sources. Section 45 of the Trademark Act defines the term “trademark” as “any word, name, symbol, or device, or any combination thereof-

(1) used by a person, or

(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register…,

March 26, 2009

Virginia City Settles Race Discrimination Claim

by Lee E. Berlik

The Virginia city of Portsmouth agreed to settle a race discrimination case brought by the Department of Justice on March 25, 2009, the same day the suit was filed. In the lawsuit, the DOJ accused the city of discriminatory hiring practices against African Americans in its hiring of entry-level firefighters, in violation of Title VII of the Civil Rights Act of 1964.

While the civilian labor force of Portsmouth is about 46% African American, only 12.4% of the city’s firefighters were African American. The DOJ attributed the discrepancy largely to the administration of the “National Firefighter Selection Test,” a written examination with a pass rate of around 86% for whites but just 42% among African Americans, a “statistically significant” difference, according to the lawsuit.

The case serves as a reminder that Title VII protects individuals not only from intentional acts of race discrimination, but in some circumstances may even protect such individuals from unintentional discrimination when such is the result of employment practices that may be well-intentioned but nevertheless have a “disparate impact” on members of a particular racial group. As the United States Supreme Court held in 1971, Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity.” Griggs v. Duke Power Co.,

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