12345678910111213141516171819202122232425262728Because oral argument would not be of material assistance,
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this matter was deemed suitable for decision without oralargument. Local Rule 230(g).1UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIADANIEL JURIN,No. 2:09-cv-03065-MCE-KJMPlaintiff,v.MEMORANDUM AND ORDERGOOGLE INC.,Defendant.----oo0oo----Through this action Plaintiff Daniel Jurin (“Plaintiff”)alleges violation of state and federal laws arising out of theuse of the trademarked name “Styrotrim” as a suggested keyword inthe “AdWords” program operated by Defendant Google, Inc.(“Defendant”). Presently before the Court is a Motion byDefendant to Dismiss Plaintiff’s Second and Sixth Claims forRelief for failure to state a claim upon which relief may begranted pursuant to Federal Rule of Civil Procedure 12(b)(6).For the reasons set forth below, Defendant’s Motion is granted.
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Case 2:09-cv-03065-MCE-KJM Document 38 Filed 09/08/10 Page 1 of 11
12345678910111213141516171819202122232425262728The factual assertions in this section are based on the
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allegations in Plaintiff’s Complaint unless otherwise specified.2
BACKGROUND
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Defendant is an internet search engine provider. Thisdispute is based on Plaintiff challenging the lawfulness ofDefendant’s Keyword Suggestion tool in its for-profit “GoogleAdWords” program.
A.Background on Search Engines
In operating its search engine, Defendant “indexes”websites, collecting information on their contents for use informulas which respond to search queries. Generally, when a userenters a query into Defendant’s website, the search engine willprocess relevant sites and then return results to the user.Businesses routinely use this process to influence theirwebsite’s ranking on a results page. Prior to building awebsite, businesses will often utilize various available keywordtools to determine what keywords internet users are most commonlysearching for. A business will then build its site around morepopular search terms in order to ensure a higher rank on a searchengine results page.Alternatively, a business may “bid” on keywords. “Bidding”allows businesses to pay search engines a fee as a bid onselected keywords in an effort to appear on a results page as a“Sponsored Link”.///
Case 2:09-cv-03065-MCE-KJM Document 38 Filed 09/08/10 Page 2 of 11
123456789101112131415161718192021222324252627283The higher the bid, the higher the “Sponsored Link” placementwhen bid-upon keywords are searched for. “Sponsored links”appear either at the top or along the side of a search engineresults page.Defendant allows advertisers to bid on keywords in a programcalled “Google AdWords”. In addition to allowing advertisersselect their own keywords, the program offers a “KeywordSuggestion Tool” which suggests popular search terms toadvertisers for bidding.
B.Plaintiff’s Suit
Plaintiff holds the trademark for a building material knownas “Styrotrim.” He markets and sells his product to homeowners,contractors, and those in the construction and remodelingindustries.Defendant’s AdWords program picked up the trademark name“Styrotrim” as a commonly searched term. It thereafter suggestedit to bidders in its “Keyword Suggestion Tool” in the AdWordsprogram. Defendant thus enabled Plaintiff’s competitors to bidon the keyword “Styrotrim” and subsequently appear as a“Sponsored Link” on a results page whenever the term “Styrotrim”was searched for.Plaintiff alleges that Defendant, through its AdWordsprogram, misappropriated Plaintiff’s trademark for its own use,generated advertising revenue from Plaintiff’s competitors, andfacilitated Plaintiff’s competitors in infringing on Plaintiff’strademark.
Case 2:09-cv-03065-MCE-KJM Document 38 Filed 09/08/10 Page 3 of 11
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