In the Spring of 2009, two putative class action complaints were filed against Google and several other defendants. Both lawsuits alleged that Google’s AdWords program violated the Lanham Act because the resulting ads were likely to confuse Internet searchers. Locke Lord attorneys issued a Client Alert discussing the potentially significant implications of these suits if they succeeded, but opining that they were unlikely even to be certified as class actions because they required the court to resolve too many detailed individualized issues, such as the strength of each class member’s mark, whether each resulting “Sponsor Link” ad was likely to cause confusion, and individualized defenses such as fair use.
On Sept. 29, 2011, U.S. District Judge T. John Ward issued a short order adopting the detailed recommended ruling of the Magistrate Judge denying class certification for precisely these reasons (and a few more). The Magistrate Judge’s detailed opinion in FPX, Inc. v. Google, Inc., No. 2:09-cv-142 (E.D. Tex.) is available here.