I’m not surprised, but I’m a little disappointed.
After the district court issued its flawed decision roundly supporting Google, and the Fourth Circuit sent the case back to the district court, Rosetta Stone last week settled its keyword advertising lawsuit against Google.
The first time around, the Eastern District of Virginia found Google was protected from liability by a strange application of the functionality doctrine, and seemed to ignore that the case was decided on summary judgment. In other words, the court improperly found no trademark infringement and no dilution even though Rosetta Stone had offered evidence to the contrary. Such disputed issues of fact should be decided at trial, not on summary judgment.
The Fourth Circuit’s decision helped iron out the evolving law on keyword advertising law. It told the district court where it had erred and directed it to reassess the evidence in light of the standards the appellate court clarified.
That’s all good. Still, I had been looking forward to seeing what the district court was going to do with the case in light of that direction. My predication was the result would be the same — Google would win — but this time, for the right reasons. Now we’ll never know!
Previous post on the case here.