4th Cir. unseals some records in trademark appeal

On Tuesday, the U.S. Court of Appeals in Richmond, Va., (4th Cir.) ordered the partial unsealing of multiple volumes of court documents submitted in a high-profile trademark dispute between Rosetta Stone Ltd. and Google Inc. However, at Google’s request, the court declined to lift the seal on hundreds of pages in the court record.

The appeal in Rosetta Stone Ltd. v. Google, Inc. concerns Rosetta Stone’s assertion that Google’s "keyword" advertising sales and practices infringe and dilute Rosetta Stone’s trademarks, and result in unjust enrichment to Google. A U.S. district court in Virginia ruled in favor of Google on all claims last year, leading to Rosetta Stone's appeal.

In December, Public Citizen and two intellectual property legal commentators asked the Fourth Circuit to allow them to intervene in the appeal. The intervenors sought, among other things, public access to the sealed documents contained in the "Joint Appendix" filed by the parties as part of the appeal. According to the intervenors' filings, the sealed documents comprise 13 of 15 volumes of the submitted appendix and consist of thousands of pages. The intervenors argued that documents submitted into the judicial records were presumptively public and that the parties had not demonstrated grounds to overcome that presumption here.

Rosetta Stone did not oppose the motion to unseal. Google responded that it did not oppose unsealing 85% of the sealed appendix, but asked the court to keep the remainder of the record sealed. The company argued that it had scrutinized the remaining documents and had good reasons to keep them sealed, such as protecting confidential, personal and private information. Google also maintained that the parties' publicly-filed briefs, which were filed in un-redacted form after Public Citizen challenged the redacted filings, reduced the need for public access to the underlying record.

The court on Tuesday granted Google’s request, ordering the unsealing of only “those documents that [Google] has agreed in its response to unseal.” The court’s short order did not provide an explanation for its ruling.

By the intervenors' count, Google's position should lead to the unsealing of nearly 6,000 pages, while leaving nearly 800 pages sealed.

Public Citizen’s counsel, Paul Levy, maintained that Google’s asserted grounds did not justify the continued sealing, and he questioned the order’s lack of findings and discussion of the issues. “If a district court issued an order like this, the Fourth Circuit, in my opinion, would summarily reverse and remand for issuance of an opinion containing findings of fact and explaining the basis for the sealing decision," Levy said.

The court’s order gives Google until March 25, 2011, to file a corrected joint appendix with the unsealed documents. Oral argument on Rosetta Stone’s underlying appeal is tentatively set for May 2011.