In a widely anticipated decision announced on April 9, 2012, a panel of the United States Court of Appeals for the Fourth Circuit upended the final judgment in Rosetta Stone v. Google. The published opinion can be found here. Chief Judge William Traxler wrote the opinion, in which Judge Keenan and Senior Judge Hamilton concurred. The court affirmed the decision by Judge Gerald Lee (of the "Rocket Docket" Eastern District of Virginia) granting summary judgment on claims of vicarious liability and unjust enrichment. However, the Court reversed Judge Lee's summary judgment of noninfringement on theories of direct and contributory infringement. Rosetta Stone's evidence of actual consumer confusion and its survey evidence were of some significance to the Fourth Circuit. However, the Court also discussed Google studies that showed Google anticipated increases of advertising revenues when it decided to loosen its trademark adword policies in 2009. Assuming that the decision stands, the case will soon return to Judge Lee for a jury trial in Alexandria.
See our previous post on the case here.