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Trademark Court’s Impossible Order: Uber Told To Change Google Search Results
Judge tries to strike a balance but fails to understand the inherent problem at the heart of order -- controlling search outcomes.
In yet another case that illustrates the challenges the legal system faces with the internet, a Florida judge has ordered Uber, the international ride sharing service, to ensure that when someone in Gainesville, Florida, searches on “Uber Gainesville” (or something similar), a local company called Uber Promotions isn’t preempted by the larger entity in search results.
Uber Promotions, the plaintiff, owns a regional trademark that trumps the more familiar Uber in the local Florida market. Uber Promotions offers ad agency, event planning and transportation services, among other things. The company was able to show consumer confusion, especially surrounding the larger company’s UberEVENTs, and was granted an preliminary injunction.
The court’s order (embedded below) is elaborate and contains a number of directives, but here’s an excerpt that illustrates the problem:
Defendant [Uber] must ensure that a search conducted with the Google, Yahoo, or Bing search engines using the keywords “Uber promotions Gainesville phone” or “Uber promotions Gainesville phone number” does not return a result with Defendant’s 352-area-code number.
The court is seeking to prevent consumers looking for the local company from being directed to Uber. But given that Uber doesn’t control organic search, there’s effectively no way for it to “ensure” the desired outcome. The court’s order is thus all but impossible to comply with, except perhaps in some way through AdWords — though top ad placement cannot be guaranteed either, thanks to quality score.
According to legal blogger Eric Goldman the judge in the case was not naive, as all this might suggest, but more search/internet-savvy than most. Indeed, the opinion and order make clear that the judge is seeking a balance that protects the local trademark holder, Uber Promotions, while not preventing Uber from operating in the market.
It’s not clear how that will be achieved, as a practical matter. The ultimate solution probably involves some sort of licensing agreement or lump payment that doesn’t impliciate third parties such as Google or Bing.