ASCENTIVE, LLC v. GOOGLE, INC.

Filing 12

Memorandum of Law in Support of Motion for Preliminary Injunction RE: MOTION for Preliminary Injunction filed by ASCENTIVE, LLC..(ARENA, ALEXIS) Modified on 7/27/2009 (nd, ).

ASCENTIVE, LLC v. GOOGLE, INC.

Doc. 12

Dockets.Justia.com

Plaintiff, Ascentive, LLC ("Ascentive"), seeks a preliminary injunction to stop defendant Google, Inc. ("Google"), from using Ascentive's trademarks to sell competing computer software and from shutting Ascentive out of Google's search results and advertising programs. Evidence of the urgent need for preliminary relief in this matter is displayed by searching for Ascentive's products using Google's search engine, located at www.google.com. Ascentive sells computer software products that can be purchased and downloaded from websites including Ascent ive's website www.finallyfast.com, where Ascentive's "FinallyFast" computer software provides consumers with a "Free PC Scan" that identifies ways to improve computer performance. (Schran Decl., ¶¶ 2, 8). Ascentive spends millions of dollars in television ads for its FinallyFast software, which instruct consumers that they can download the software advertised by locating the website www.finallyfast.com online. (Id. at ¶¶ 13-15). Internet users who search for "www.finallyfast.com" through Google's search engine1 would not find a single Ascentive product. Instead, they would find search results showing competitors who use names confusingly similar to Ascentive's FinallyFast trademark, including the following:

(Images excerpted from July 15, 2009 Search Results, attached to Arena Declaration as Ex. 1).
1

More than 78 percent of internet searches in the United States were performed using Google's search engine. "Google's name now means search to most users." (Arena Decl., Ex. 2).

The prospective purchaser seeking Ascentive's FinallyFast software is likely to be confused and believe that Ascentive operates or is affiliated with one of these nonaffiliated competing websites and that they contain Ascentive's FinallyFast software when they do not. Selecting either link leads the purchaser to websites that display Ascentive's FinallyFast trademark in connection with computer software advertisements. (Arena Decl., Ex. 1). The FinallyFast.us website proclaims that it offers the FinallyFast software "Seen on TV" and advertises the same "Free PC Scan" offered by Ascentive. (Id.) When the purchaser clicks on the "Free PC Scan" invitation, he or she is immediately prompted to download software that is not Ascentive software:

Instead, the software at FinallyFast.us and Finally-Fast-PC.com has intentionally been mislabeled by the website owners and Google to make them believe it is Ascentive's software.2 Google profits from this mislabeling because advertisers like Finally-Fast-PC.com compensate

2

Finally-Fast-PC.com is listed in the highlighted "Sponsored Link" section of Google's search results above because it is a Google advertiser that has paid Google to appear in the Sponsored Links following searches for "www.finallyfast.com." Although FinallyFast.us is not listed in the Sponsored Link example above, FinallyFast.us also has been a regular Google advertiser and has had similar advertisements displayed following searches for "FinallyFast," "FinallyFast.com," and "www.FinallyFast.com." (Schran Decl., ¶¶ 19-20; Arena Decl, Ex. 13). 2