The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through this action Plaintiff Daniel Jurin ("Plaintiff") alleges several violations of state and federal law arising out of the use of the trademarked name "Styrotrim" as a suggested keyword in the "AdWords" program operated by Defendant Google, Inc. ("Defendant"). Presently before the Court is a Motion by Defendant to Dismiss the Second, Fifth, Sixth, Seventh, and Ninth Causes of Action alleged by Plaintiff for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
Defendant also moves for costs and to stay the proceedings. For the reasons set forth below, Defendant's Motions are granted in part and denied in part.*fn1
This dispute is based on Plaintiff challenging the lawfulness of Defendant's Keyword Suggestion tool in its for-profit "Google AdWords" program.
A. Background on Search Engines
Defendant is a highly recognized corporation most known for its widely-used search engine website. As part of operating its search engine, Defendant "indexes" websites, collecting information regarding their contents so that it may then store the information for use in formulas which respond to search queries. Generally, when a user enters a query into Defendant's website, the search engine will process relevant sites based on several information factors and then return results to the user.
Web designers routinely use this process to influence their ranking on the results page. Prior to building a site, web designers will often conduct a keyword search using various available keyword tools in order to determine what terms or phrases internet users are most commonly searching for. A web designer will then build his site around more popular search terms in order to ensure a higher rank on a search engine results page.
Those with more capital may also "bid" on keywords. A web designer can use a keyword tool to discover popular terms, construct an ad or site using those key words, and then pay a search engine provider a fee to bid on those terms in an effort to appear on a results page as a "Sponsored Link". The higher a web designer bids, the higher the "Sponsored Link" placement when those bid upon keywords are searched for. "Sponsored links" appear either at the top or along the side of a search engine results page.
As part of its business, Defendant allows advertisers to bid on keywords in a program called "Google AdWords".
Plaintiff owns a company which markets and sells its trademarked "Styrotrim" building material to homeowners, contractors, and those in the construction and remodeling industries. Plaintiff files suit in this case based on Defendant's, and Plaintiff's competitors, alleged unauthorized use of its trademarked name as a generic keyword.
Defendant's AdWords program picked up the trademark name "Styrotrim" as a commonly searched term and thereafter suggested it as a keyword to bidders in its AdWords program. It then allowed Plaintiff's competitors to bid on the keyword "Styrotrim" thus allowing them to appear as a "Sponsored Link" on a results page whenever the term "Styrotrim" was searched for.
Plaintiff now alleges that through its AdWords program, Defendant misappropriated its trademark name for its own use, generated advertising revenue from Plaintiff's competitors, and facilitated Plaintiff's competitors in infringing on Plaintiff's trademark.
Plaintiff alleges that Defendant's actions have caused a dilution of its consumer base. Plaintiff states that as a result of Defendant's program, often times competitors' names may appear in a position higher than Plaintiff's business on a results page. Plaintiff argues this confuses consumers into believing that competitor's product is preferable to Plaintiff's and, in essence, is a form of "bait and switch" ...