Rosetta Stone, a maker of language-learning products, sued Google for infringing and diluting its trademark by allowing makers of competing products, as well as retailers and others, to buy advertising that would be displayed as paid results among the search results when members of the public entered Rosetta’s name as a search term (a practice known as “keyword advertising”). The trial court granted summary judgment and Google appealed. In an amicus curiae brief filed with the consent of the parties, Public Citizen argued that keyword advertising allows more effective comparative advertising and criticism because it brings such material to the attention of potential customers. Both as a matter of trademark law and, indeed, the First Amendment, those who compete with or criticize a trademark holder are entitled to call their own web content to the attention of those who have displayed interest in a trademarked term. Moreover, search engine users know that when they conduct a search they will receive a menu of choices and that the first link they choose may not lead them to the web site they want the most. However, it is so easy to recover from such mistaken choices that the doctrine of “initial interest confusion” should not be employed to hold Google liable here. The court of appeals reversed because it concluded that there was sufficient evidence that consumers were likely confused about whether certain advertisements for counterfeit versions of plaintiff’s product were sponsored by plaintiff.
Public Citizen also challenged the filing of large parts of the parties’ appellate briefs, as well as thirteen volumes of the fifteen-volume joint appendix, under seal. The parties agreed to file entirely unredacted briefs, but although Rosetta Stone agreed to the unsealing of the entire joint appendix, Google has opposed the unsealing of nearly 800 pages of the joint appendix. We argued that, because Google had refused to provide a detailed explanation of its secrecy claims, and because it had not introduced any evidence of its need for secrecy, the entire joint appendix should be unsealed. The court ruled that only those documents that both parties had agreed to unseal must be filed publicly.