Mishak v. Google, Inc. et al. is quite a head-scratcher. I found the complaint on the Justia Federal District Court Filings and Dockets website. Unfortunately, the complaint was a scanned and split into three parts. Breaks the flow when you have to hop around. I pieced the complaint together and OCR’d it. Here it is.. (PDF – 15.3MB) The high (or low) lights:
- Search Engines. Plaintiff sued a long list of defendants, which allegedly operate various Internet “search engines.” Of course, the Plaintiff sued the big three: Google, Microsoft and Yahoo. What do they say on informercials? But, that’s not all? Plaintiff also sued Excite (which I last used in the 1990s), as well as AltaVista (ditto). Then it got weird. Craigslist? Earthlink?
- Banner Ads. “All Defendants … sell advertising space on the [s]earch result pages known as Banner Ads.” Google does banner ads? I haven’t punched the monkey on Google yet. Advertising (of any kind) on Craigslist? Gasp!
- Copyright or Trademark. “Plaintiff has a copyright. (Exhibit 1). trademark. [sic]” Exhibit 1 is a certificate of registration with the United States Copyright Office for HTML web pages entitled “I Need a TV.” I thought this was supposed to be a trademark claim.
- Weak Trademark. “Plaintiff contends that in utter disregard to [Plaintiff]’s intellectual rights, Defendants have sold ‘keywords’ identical to certain of [Plaintiff]’s trademarsk to various third parties and have deliberately manipulated Defendant’s search engine “results” so that, when consumers use these search engines to find [Plaintiff]’s products and services, the consumers are unwittingly diverted to competitors’ products and services.” So, what exactly is Plaintiff’s trademark? “I Need A TV.” See the problem? Weak trademark with generic terms.
- Best Buy Beware. “MISHAK d.b.a. INEEDATV.COM is one of the largest direct-to-consumer retailer of custom order televisions, appliances, and personal property in the United States and on the Internet.” Now I want to see the sales figures to back up that statement!
- Money Quote. “The dollar amount of sales in the United States of MISHAK’s televisions, commercial and home appliances products and related services under the MISHAK Marks offered for sale and sold under the MISHAK Marks since the original adoption and use are well in excess of many tens of thousands with reasonable growth projecti ons into the tens of millions of dollars.” Many tens of thousands? Considering that consumers are looking to spend about $1,000 on a television nowadays, that means that Plaintiff sold tens of televisions. One of the largest retailers? Not likely.
- Keyword Advertising. “Google et al. refuses … to cease selling other keywords comprised, in whole or in part, of the MISHAK Marks….” Somehow, I don’t think Google is going to ban companies from buying advertisements for the keyword TV even if it is in the Plaintiff’s service mark.
- Fill in the Blanks. “For example, Google and the other listed defendants continues to sell to MISHAK’s competitors the keywords ….. Accordingly, if a consumer using Google’s et al.’s search engine types ‘…..’ in the search window, competitors who have purchase ‘…..’ or even just ‘…..’ can still appear at the top or in the margins of the results page.” No, I didn’t redact the search terms above. The blanks exist in the original complaint. Really. Fails to state a claim?
- Metatags. In metatag / trademark cases, plaintiffs usually sue the parties who have used plaintiff’s trademarks in their metatags. Plaintiffs usually don’t sue the search engines for returning results based on potentially infringing keywords found within a third parties’ metatags.
- More Fill In the Blanks. “The Defendants’ search engines are designed and intended to divert and lure consumers from the websites that they intend to visit – e.g., the MISHAK websites – to other websites owned by competing advertisers such as ‘…..'” Damn fill in the blanks. I really want to know who are the competing advertisers. I’ll have to wait for the amended complaint.
- More Fill In the Blanks. “The Defendants’ search engines are designed and intended to divert and lure consumers from the websites that they intend to visit – e.g., the MISHAK websites – to other websites owned by competing advertisers such as ‘…..'” Damn fill in the blanks. I really want to know who are the competing advertisers. I’ll have to wait for the amended complaint.
- Alta la Vista, Baby! Exhibit 2 shows search results for the search term “I Need a TV” from January 8-14, 2006. And, Plaintiff finally filed suit on December 20, 2007? What’s up with the two-year delay? Also, the complaint primarily appears to target Google, but the search results are from AltaVista. Actually, Exhibit 2 is split into two parts. The first section shows the sponsored matches (i.e., ads) that appear when someone searches AltaVista for the term “I Need A TV.” Because AltaVista bolds the text in the ads that match the search query, you can see that the only matching word is TV. The next section is the same query “I Need A TV” with the modifier “domain:avsforum.com.” This search will return matches for “I Need A TV” at the website avsforum.com. AVS Forum is a discussion and review forum for home theater products. So, AltaVista returned results showing the following matching discussion threads: “Need a TV with 2 DVI inputs,” “Does MCE need a TV tuner card to run?” and “Need a tv for family room going over a fireplace.” I think this is the smoking gun. 😉
- Missing Home Page. “Plaintiff has been careful, skillful and meticulous in the conduct of their television, home and commercial appliances and related services under the MISHAK Marks. Included herein as Exhibit 3 is a copy of Plaintiff’s Home Page.” I couldn’t find Exhibit 3 in the electronic filing. I really wanted to what the Plaintiff had attached because when I visited the Plaintiff’s website, I saw this:
P.S. I learned this from Guy. Call it a Top 10 list even if I have 13 items.