Amicus Brief

Rosetta Stone Ltd. v. Google, Inc.

Published: January 7, 2011


U.S. Court of Appeals for the Fourth Circuit

Our Position

First, the district court misapplied the doctrine of functionality when it used that doctrine to consider whether a search engine is liable for trademark infringement when it uses trademarks to offer keyword advertising. Second, the district court erred 1) in holding that the defendant could not be liable for dilution because it did not use the plaintiff’s marks to identify its own services and 2) in holding essentially that the plaintiff was required to show actual dilution.


In its decision reversing the district court’s grant of summary judgment to Google, the court  adopted INTA’s arguments and also held that the sufficiency of Rosetta Stone’s evidence of confusion should be assessed at trial, not on summary judgment.