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Google AdWords Case Is Sadly Funny

A Judicial Comedy of Errors

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Here’s the understatement of the week: "This wasn’t the best-argued case of the day." New York Law School professor James Grimmelmann was referring to the resurrection of computer repair company Rescuecomm’s lawsuit against Google, which was dismissed in 2006, but is now up for review by a federal appeals court.

One can imagine the judges sliding spectacles to the ends of their noses, stretching out papers to arm’s length and squinting, before trying to decide if they buy the argument that there is "no next to" on the Internet, and whether a search engine results page is more akin to a store shelf, directory assistance, a pharmacy, or a vending machine.

This is one of a number of important cases across the country as the legal system tries to hammer out what is and isn’t acceptable in the digital 21st Century. Some offline analogies might not fly in the online world, however. Those that don’t fly in this case are offered first by Rescucomm’s attorney, and then by judges who seem to have relative difficulty grasping the concepts behind search marketing.

Give them a break; it’s been a long time since they took their LSATs.

Rescuecomm’s case revolves around the not-so-simple question of whether bidding on trademark keywords is considered a use in commerce, thus violating trademark law. Rescuecomm’s (previous) argument echoed other complaints from Geico and American Airlines that competing businesses should not be allowed to target their trademarks in sponsored search ads. Yahoo and MSN, fearing litigation, discontinued the practice.

Rescuecomm’s other argument though, is that when people search for a company name, they only want content from that company, not paid content from competitors or any other organization that might be targeting that keyword (like non-profits, critics, or news agencies). Google argued that it was improper to demand that all roads lead to Rescuecomm.

In an "oral argument report," Grimmelmann says the judges joined Rescuecomm in theorizing and posing hypothetical situations, one of which involves futuristic machines that, if invented, would make as much sense as Universal Music Group’s latest argument that throwing away promotional CDs constitute "unauthorized distribution."

I’m putting that one on the board, too, as a contender for Not The Best-Argued Case of the Day.

The trump card in deciding whether or not the case can go to trial is whether there is potential for confusion between companies or products. This led the three-judge panel to discuss whether a sponsored ad appearing next to organic results was different from placing Pepsi next to Coke on the store shelf; or different from phoning directory assistance, asking for a company number and being given a competitor’s number instead; or different from if you asked the pharmacist for Advil and were given Aleve.

Grimmelmann’s account borders on hilarious. Here’s an excerpt:

 

[Judge Guido Calabresi asked] What if someone types in something at an automated drug counter and a box comes out, half Advil and half Aleve? The specific request, said [Google attorney Michael] Page, made the response an implied representation. Thus, Calabresi asked, [what] is the difference between that and Google? What would be difficult about saying, “These are some other things, not directly what you asked for?” Ah, Page replied, but that’s what we do with our “Sponsored Links” text. That’s when the trap snapped shut. 

 

Hmmm. I know: What if I bought a box of Cheerios and there was Grapenuts inside? You know what Grapenuts does to my teeth? What if I confuse my Ex-Lax with my Viagra? Will I know if I’m coming or going?

Oh come on. It was wide open.

Unfortunately for everybody, this is kind of important. It seems unduly restrictive of not only speech but also of the free market to disallow competition (or competing viewpoints, if it helps solidify it for you) from appearing in the search results. What Rescuecomm and other companies want is not in the interests of protecting their trademark, but in eliminating Google’s ability and right to inform consumers of other options and opinions.

Fortunately though, this comedy of judicial errors doesn’t decide the case once and for all. It’s just a hearing to see if there’s merit to overturn a dismissal. If so, Rescucomm gets a trial and Google’s legal team gets another chance to destroy a specious argument.

If you think the judges had trouble with this one, just wait until they have to learn about meta tags and whether its legal to drop in your rival’s trademark in order to snag their organic traffic, too.
 

Google AdWords Case Is Sadly Funny
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  • Guest

    Google is like a DIRECTORY. Any company has the option of OPTING-OUT. Robots no index etc. OPT-IN or accept to be in a directory and your company will be alongside your competitors, in the paper directory or comparison websites or Yahoo or Google. Where is the problem?

    Henry

  • Guest

    I used to advertise on Google Adwords so that my ad would appear in their search engine when certain key words were searched for.  However, I have removed my ads and no longer use Google because my competitor has his website positioned as one of the first listings that appears in the search engine for free and not as a paid ad everytime one searches for the same keywords that triggers my ads which I have to pay for clicks but they don’t because they appear at the top of the free search list.  I contacted Google about this and they said that they couldn’t do anything about it because their search engine and how it gets result placements on it has nothing to do with how ads get placement on their search engine by adwords.  I am sure that this is a issue to many advertisers that hasn’t been addressed yet.

  • http://www.lifesizecustomcutouts robert

    This problem can’t really be helped at all, why should this company have a case when everyone on the internet has the same problem. You type in any search term and you get 10-15 ads competing for ad space and you also get 10 organic WebPages that are competing to be on the first page. It wouldn’t be fair if the competitors where taken out. Not fair to Google because they are getting money for it, not fair for the consumer because it takes away their right to choose, and not fair to the companies competing. So you are saying if someone types in a keyword only your company should come up, how would you like it if the upper hand was on the other foot, and your company was excluded for a keyword you pay hard earned money for. I think you should be grateful that your company can even make it on the search engine that gets the most traffic to begin with, Google is a tough racket sometimes, it certainly keeps you on your toes, but if you are keeping up with the system the payout is great.

     

    I too thought that jab about the ex-lax and Viagra was hilarious.

     

  • http://www.awesometechhome.com Awesome Technologies, Inc

    I believe this point is new, but along the same lines…  If I search Google for my exact company name (which is trademarked), I get a large assortment of random sites paying to automatically substitute my works in their ads and thus stealing my hits.  Google say that I should pay more money and at least we would be on the top of the list!  For us, we are very small, with a small budget and can not compete with the larger budget companies.  This is where I get miffed!

    Henry Willcox

    President/CEO

    Awesome Technologies, Inc.

  • http://www.blurbblitz.com Adrianne

    I can understand and sympathise with both sides of this arguement. On one hand, you have Google, who is trying to keep out of interfering with their crawls as much as possilble for the sake of fairness. On the other hand you have Rescuecomm, who has a legitamate point that if someone puts in their name as the search term, their site should at least have priority.

    I have to say I am on Rescuecomm’s side on this one. If you were looking in the phone book for a customer service number for AT&T* but having to dig through tens, hundreds or thousands of ads for MCI*, Vonage*, Embarq*, etc…not to mention anything having to do with customer service (which may or may not have anything to do with what you’re actually looking for…We all know Google’s ad’s can be a little haywire sometimes) it gets frustrating and quite irritating on the consumer side. Put yourself in the business shoes, you’re paying for advertising and your competition is reaping the benefits. Plus, every customer that doesn’t keep digging is a customer lost.

    There has to be a compromise here. Perhaps Google should institute a policy of no paid ads on trademarked searches or something along those lines. The question would be, where do you draw the line?

    *All names are trademarked to their respective companies, all rights reserved by said companies. Please don’t sue me for using your name. Thank you!

  • http://www.frontlinepaintball.co.uk Guest

    in respone to the post about google being unfair, its actually down to the website developer how succesful your site is the google ranks, as there are uncountable pages for most things you search for. The key is not to pay for listings, but to gain your site better rankings by correclty wording and linking each pages.  Cramming as much info that relates to the service you offer and keywords are the most important thing about getting up there in google.  Adwords are a quick fix and your just paying google to put your site at the top.

    • BL

      The web developer has very basic requirements to meet. Your search engine rankings rely on everything external to your site. What you do on your wesite such as linking correctly so the spiders have a path to follow, developing the appropriate hierarchy, monitoring keyword density, and assigning the appropriate meta tags simply allow you to be visible should you meet the real requirements. The real requirements for search engine ranking is based on what is done externally to your website. I can find a thousand websites that have followed the fundamentals yet still have a PR of 2-3 and rank poorly on every term important to their business. Unfortunately too many web developers think they understand relevancy an more unfortunate they are out there selling it as a service :).

  • http://www.hemorrhoidshemroids.com/ Donald

    I also agree with others that this is a two sided argument with both having merit.

    I agree with the shop shelf idea that favors Google, but the use of another persons legal copyright name to make money for oneself by advertising it without the owners explicit consent, pushes the bounds of acceptability. 

    Ok, the name may not appear in the ad, but it’s triggered by the name.

    When was the last time you went to the Kellogs coco pops stand and saw a sign pointing to a competitors shelf?

    In the shelves, each brand has it’s own place, they are not jumbled up together in the same spot.

    But then, we are all accustomed to having this jumble of competitors in search pages.

    I accept that when I use a search engine, it’s not a freebie, someone has to pay.  If someone wants to say that only my company should show up when it’s name is typed, then I feel they should either pay the search engine for that privilege or expect to have nothing show for that name all together, not even their website address. 

    So, yes, there are two sides to this and don’t think their is an absolute right or wrong side.

     

  • http://www.jumbocdinvestments.com Jumbo CD Rates

    You can’t compare Google to a phone book or grocery store.  If you want to make sure you only get the number for AT&T look it up in the phone book.  If you want to know what others have to say about AT&T then type look it up using a search engine.  I routinely do simple brand name searches to find reviews, history, etc. on a brand.  Just because someone type’s a brand name as a search string does not mean they are looking for the company’s website.  Since SEs can’t read our minds it can only return results that best fit the search query.  And just typing the company’s name is way to broad of a query for the SE to really know what the searcher wants.  Now maybe google could ad a parameter so that if someone typed CO_WEBSITE::AT&T it would return the AT&T company website.   However, I don’t thnk gov’t has a right to force them to do so.

    At a grocery store, the consumer and company providing the products are paying for the products to be given correctly.  The users searching for information on Google aren’t paying them anything.  And unless the company is paying for Ads, they aren’t either.  SEs don’t have a responsibility other than trying to return the best results that a given search query asks for. 

    I think ads are a different ball game though.  I don’t believe I have the right to place ads for a trademarked company name without their permission, in essence pretending to represent them.  I have seen TV ads where one product is comparing itself against another, but the primary focus of the ad is till on the company that prepared the Ad.  In essence this would mean no targeted ads would show unless the company itself were paying for them.  This doesn’t mean that general purpose ads couldn’t still be displayed.  For instance, a user types AT&T.  Only AT&T ads could show as far as phone servicing goes, but other ads for Plasma TVs and low mortgage rates could be displayed. 

    Just some thoughts.

  • http://www.cshel.com/ Carolyn Shelby

    There are a ton of other lengthy replies already, but I just wanted to pop in and let Jason know that the Viagra/ex-lax joke made me literally laugh out loud (much to the confusion of my co-workers), and I also wanted to jump for joy when I saw that you described the argument as specious. Sometimes I feel like we spend too much time writing for 6th grade level readers; it’s refreshing to find multisyllabic "grown-up" words in my inbox :)

    Kudos!

    Carolyn Shelby
    SEO 101 on WebmasterRadio.FM
    (also, the in-house seo chick at Spine-Health.com)

  • http://www.2bjewelled.com Bjewelled

    There is a difference between bidding on trademarks as keywords and the use of those words in the ads themselves or meta-tags.

    Advertizers are bidding on the terms and words people enter into search engines which to me has freedom of speech connotations and should be freely permitted.

    However, I think trademark owners should have the right to prevent the use of those words in ads and meta-tags if the advertizer does not have the right to use them. But, this must surely be down to the owners to pursue. It would be impossible for search engines to impose a blanket ban on all trademarks in  ads and meta-tags, the vast majority of which are probably perfectly legitimate.

    If I sell Coke I should be allowed to advertize the fact, and, if I am prepared to pay more than Coca-Cola to get my ads or serps to the top of the listing – well, that is what the SE business is all about; there is nothing unfair about it. I should also be allowed to advertize that fact when people search for Pepsi, Seven Up, Dr. Pepper or any other cola. But, I would not expect to be allowed to advertize for any of those others if I do not sell them.

     

     

    • http://www.2bjewelled.com Bjewelled

      …that last sentence should read, "But, I would not expect to be allowed to advertize, i.e. display, any of those other names if I do not sell them."

       

       

  • http://www.VerticalMeasures.com Arnie

    It will be interesting to see how this all sorts out.  I just had a discussion with a client about this yesterday.

    I have had some issues with companies when I used the ‘variable’ feature in adwords which allowed the competitors terms to show in the ads I created.  I had to set up a seperate ad group for competitors terms so avoid this.

    In my humble opinion, bidding on a competitors term is fair game as long as you do not display their name in your ad.  The shelf space expamle is probably the closest to describe this situation.

  • Guest

    The comments in this strand are a sad endightment of the intelligence and literacy levels of the US people.  You guys are getting dumber and dumber by the year.  Comments include ‘congratulations on using a semi-colon’ and ‘it was great to see someone use the word specious.’  What is wrong with you people?  It really is no wonder those of us in the rest of the world hold you in such contempt.  After all, congratulating someone on their use of a semi-colon is something a fifth grade teacher in other countries would do.  The saddest part of this is that as a people you actually have influence in this world under the ‘great’ leadership of George W. Bush (lol).  However, when I see comments like those I can see how someone with such a low IQ can become the leader and representative of your country.  Where do you think your country will be in 50 years time?  That is of course if it still exists!  I have tried to keep the terminology in this correspondence as simple as I can so at least 10 to 20 percent of you might understand it.  Now go back to watching re-runs of the Simpsons.  As for the google argument; who really cares?  Look I used a semi-colon; someone congratulate me.  Adwords days are numbered anyway as the rest of the world has learnt to switch off from the noise and refine their search methods anyway.  It is only the US people who are likely to be attracted by the ‘flashing lights’ in this case if you are still even interested in sponsored links.  After all, the rest of us already now natural rankings are more meaningful anyway.

    Steve (someone who is glad not to be a US citizen).

    • Jason Lee Miller

      So I’m curious. Do they teach sense of humor in your country or did you miss that day? If so, you also missed these topics:

      1. When dealing in mass media, content producers are often instructed to dumb down their writing to between a 4th and 8th grade level (depending on who’s teaching this awful doctrine). Hence Carolyn’s comment that it was nice to see someone use a higher-level word. What can I say? I’ve nearly finished my doctorate-level degree, so it’s hard to stop myself. There are times I’m tempted to use erudite, pretentious words like “bildungsroman” or “pettifoggery,” but that’s no fun for anybody is it? Doing that usually just comes across as showboating. (See: Hemingway vs. Faulkner, if you’ve ever lowered yourself to read a work of American fiction.)

      2. If you click on a link, it might take you somewhere interesting or amusing, and may also shed light on the context of a remark. Carolyn’s appreciation of someone using a more difficult word was a sad commentary on modern media. Because, thanks to my schooling and obviously not, as you assumed and pointed out, my IQ, I was able to deduce and understand what really smart people refer to as “an undertone” that carries “a connotation” that is readily understood by some and not by others. Some call this “reading between the lines.” I responded with a link to an NYT article that was actually rather baffling to me; I didn’t know so many people had trouble with semicolons. Having just read that previous to Carolyn’s remark, I sort of jumped on her wavelength and gave her a kudos for something else that should be common knowledge. I know. It’s hard when it’s not spelled out for you. That’s why I am here to teach.

      3. Sarcasm: the use of praise to mock someone or something; the use of mockery or verbal irony

      4. General etiquette.

      5. How not to jump to (mean) conclusions.

      6. How not to be an all around ethnocentric jerk.

      7. How to deal with latent mommy issues.

      Jason (someone who is glad Steve’s not a US citizen and once tested decently enough on an IQ test that they yanked him out of regular school and sent him to classes that wouldn’t bore him to tears)

    • Guest

      Steve,

      Good effort in your attempt to use a semi-colon.  Perhaps you should return to fifth grade in your homeland’s fine educational system for a refresher.  Take a look at your sentence:

      As for the google argument; who really cares?

      "As for the Google argument"  is a dependent clause and should not be joined to an independent clause by a semicolon. 

      Your second attempt was better: Look I used a semi-colon; someone congratulate me.

      Congratulations Steve!  You’ve got a 50%, which is a failing grade in the United States. 

    • http://www.eyarmarka.com eYarmarka

      Steve,

      As someone who is glad to be a US citizen, and has a first hand experience of being a citizen of other country not so long ago:

      1) Bush-bashing doesn’t take too much IQ either, and had you paid any attention to the news, you’d know that his approval rating is abismal right now. Do you want to name a country that always had perfect "leaders" ?

      2) If you do a search on Google, you might find that in the US immigrants constitute a large portion of population, and that tends to "degrade" the language a bit. Especially, given that advertisers need to target people with less than perfect English. Furthermore, since a lot of material written on the web might be read by a non-antive English speakers, there is a benefit in using simple and concise language.

      3) US and its form of goverment is over 2.25 centuries old, and for mot of that time there have been peole screaming that it will fail tomorrow… The fact is, that although US had its ups and downs, it still stands and will continue to do so.

      4) And lastly, I have traveled all over the Europe (Western and Eastern), and I have yet to meet someone that held me "in such contempt".

      Regards

      Yuriy

    • Guest

      you’re right, you twat, its really wrong of somebody to compliment somebody else without checking w/ you first to make sure it’s a compliment that lives up to your imagined standards, you douche. go back to whatever hate-filled pile of BS you crawled out from under. I’m surprised you got the math question right in the captcha

      PS, suck it. America rules

    • Susan McCook

      Congratulations on writing a whole bunch of crap about things you supposedly don’t care about. You must be very intelligent to know how the whole world thinks and feels and what they are and aren’t attracted to. You think (and I use the word loosely here) that complementing another person’s grammar is dumb. I think posting a comment about a subject you don’t care about and putting down people for posting comments (you being one of those people) is really dumb.

      Susan (happy to be not where-ever you are)

       

    • Guest

      After all, the rest of us already now natural rankings are more meaningful anyway.

      If you are going to pick on the grammar of others, you really should spellcheck your own work!  At least you made me laugh.

       

  • Guest

    I own a company that I pay to advertise on the internet.   My company name is being placed in a competitor’s meta tags (not just like keywords, as we both sell the same product), but MY BUSINESS NAME and MY NAME, as the busines owner.  When someone does a SPECIFIC search on MY business or MY name, this person’s site comes up.  They also pay to have one of the higest rankings on Google.   I don’t think that these results should be returned by Google!  To place my business name within their meta tags to gain business via MY paid efforts, having their site appear is totally WRONG, especially, without my permission.   I’m not paying for their advertising, nor do they have my permission to use my name or business name to increase their sales, slander my own, provide comparision shopping, or whatever their ‘mission’.  I agree that a professionally desiged website should get you to the top of the rankings and it’s up to everyone to stay abreast of change.   Yet, embedding competitor’s specific business trademarks in meta tags and having these specific results returned that have nothing to do with their business/product, should not be tolerated in any court of law! 

    • http://www.edsdrugs.com?webpronews Edward McCain

      How many television advertisments have you seen that sound something like this:

      Nine out of Ten people surveyed* prefer Johnson Widgets over Smith Widgets!

      Use Johnson Widgets and see the difference for yourself!

       

      You CAN use your competitors trademarked name or slogan in a paid advertisment, as long as certain procedures are followed.

       

      So my advice is to quit whinging, target your competition’s meta and play the game by the same rules.

       

  • Guest

    this case is black and white

    paid listings – is it right that a company can take advantage of another companies brand name? For example Adidas advertising with Nike as a keyword on their adwords account. of course its not right. they are taking advantage of the millions of dollars of advertising that nike spend to get brand awareness.

    for organic listings – the only way you can get a good ranking is to write about the keyword people are looking for, whether its good or bad. therefore the results will have relevant information to the search, so its ok

    wait until the multinational companies start taking adwords and similar programmes seriously, there is no way microsoft will allow apple to advertise using its brand as its paid keywords and visa versa.

    this is an open and shut case.

  • http://www.lasercartridgeplus.com Merilee

    Yes, I agree that search engines are very similar to Grocery Stores and this whole thing is ludacris to think Cheerios could sue the grocery store for placing their boxes next to Cornflakes.

    But on the other hand, this is a very visual world we’re living in and when you go to the grocery store, you can easily tell the difference between a box of Cornflakes and a box of Cheerios.

    The problem is that search engines do not give a visual representation of the companies in the results to make it easier to ensure the searcher is getting exactly what they’re searching for. And competitors can phrase their titles/keywords/descriptions and even their design in a way that ‘fools’ the visitor into clicking on them instead.

    I’m curious to see how this turns out.

  • http://ilujon.com Jon

    Say a small company works hard and invests in building a great reputation associated with its unique trademark. I’m not talking about a descriptive term like "Wonderful Cars," but a unique trademark like say "CarsaCola." Because of its hard-earned reputation, someone goes searching for CarsaCola, but see ads for products from competitors who didn’t have the CarsaCola idea, and didn’t make the investment to build the reputation behind the mark that caused people to initiate the search. All competitors need is deep enough pockets to outbid the owner of the CarsaCola mark for ads based on its trademark, and they can butt in on the link that CarsaCola’s owner has built between its trademark and its products or services.

    • Susan McCook

      When I go to Google and search results for your company’s name, I may be trying to find your company’s website or a place that sells your product or service. But, I also might be wanting more information before I invest or make a purchase. In this case, it is best to look at all sides. I would want to know how your prices and/or services compare with other companies. Articles and reviews about your company would be something I’m looking for as well as comparing what you have with your competitors. An informed consumer is a better consumer. Any company that offers something of value should not fear competition. If I am looking for your company, and I do not see it in the search results, then I will look elsewhere.

      • Bjewelled

        Well said. That is exaclty how I use search engines and I hope, how my customers use them. (It is also why I dread "personalized search" and other such attempts to second-guess my motives, but that is another story!)

        And, as an online retailer in a competitive market, it does not really matter at the end of the day whether that competition is from natural listings or paid ads. My success or failure is ultimately down to my offer and not what keywords my competitors are bidding on, even if they are my trademarks.

    • Guest

      Realistically shouldnt CarsaCola try to sue, the company using their name in a negative to business manner rather than moaning to the search provider??? If CarsaCola, provides really bad cars that fall apart after a week, if your going to buy a car from them wouldnt you want to search the term find what other peoples opinions are of them, such as horror stories and so on?

       

  • http://www.edsdrugs.com?webpronews Edward McCain

    Let me put it in a format that everyone, even lawyers, can understand. 

    Purchasing keywords, even competitors trademarked keywords, next to organic search results is no different then sending a sales rep to a physician and paying (or otherwise encouraging) the physician to promote your brand over the competitors.   The better you butter up the physician, the more likely they are to recommend your brand whenever the patient asks about the competiton.

    Is it really that hard to understand?

    • http://ilujon.com Guest

      Your analogy might be closer to the mark if the salesrep you sent got their foot in the door by wearing the competition’s trademark on their shirt.

      • http://www.edsdrugs.com?webpronews Edward McCain

        No, the analogy is perfect.

        The sales rep. is an advertiser, the physician is google.

        The rep. pays the physician to promote cialis over viagra.

        You ask the physician about viagra and he suggests cialis.

         

        The  reasoning is both logical and sound.

      • Guest

        I agree with you on this one.

  • http://www.2bjewelled.com Bjewelled

    I am not suggesting this is about freedom of speech per se. But, there is, to my mind, a subtle difference when bidding on trademarks as keywords – the bids are on the searcher’s words and phrases not some third party’s trademark. As such, I feel there is an element of freedom of speech involved. Otherwise, I agree that it is about freedom of choice; specifically, offering that freedom of choice to the searcher and not having the search engines monopolized by the companies with the biggest legal budgets.

    An aside on confusion.

    My sister has a company that makes specialist brake parts for cars. They have a logo that includes a "tick" mark similar to the well known sports wear firm. One day she got a phone call from a representative of said company demanding £6000 for use of their trademark.  Her reply was that she would happily pay but only if they ever received a complaint from a customer who had received a £1500 brake caliper when he thought he was buying a pair of £50 trainers! Strangely, she never heard from them again.

     

    • Jason Lee Miller

      There is a freedom of speech element to this issue, which is why the Electronic Frontier Foundation, a nonprofit legal organization similar to the ACLU that focuses on digital issues, has weighed in on more than one of these cases. Their view: If critics or protestors have a message they want to get out about a company or product, then they should be able to bid on a trademark keyword if they desire and get that message out there. The company trying to stop them, in that regard, is guilty of trying to stifle speech, unless they are libelous attacks, or at least are guilty of trying to bury criticism. Instead of doing that, companies might want to mind their p’s and q’s in an always-on, eyes-everywhere, digital society.

  • AlohaGuest

    Google wants it both ways.  In their search engine they will happily hijack a search and send it to a competitor (for money), yet in AdWords, they refuse to let you bid on say "Holiday Inn", even though you are actually selling Holiday Inn rooms and getting a commission – not sending a Holiday Inn search to Ramada. 

  • Guest

    No-one is complaining about organic free results, the issue here is that people are TRADING on OTHER PEOPLE’S trade MARKS.

    It’s akin to some little photo developer shop sticking a big KODAK sign over their shop. You ‘click’ that shop because you were scanning for a photo shop, thought ‘kodak’ and spotted one. You get closer (enter site) and find it’s not really Kodak but hey, it IS a photo store. So you buy, cos you’re there.

    The store is not claiming to BE Kodak, they just used the word and symbol to get your attention huh?

    No, that is dishonest and trading on other people’s goodwill and brand recognition, ie the most expensive and valuable asset a company can have.

    To say this doesn’t matter or comes under free speech is to say brand names and trademarks don’t matter in the first place. If you feel that way best of luck over there in Commie-Land but the rest of us are trying to earn an honest living. Triggering adverts based on other people’s trademarks is simply dishonest.

    B.

     

     

     

     

    • http://www.cashfromcameras.co.uk Guest

      Surely Kodak gave the guy the sign because they want folks to buy their stuff from him rather than Fuji stuff from the shop across the street?

      The guy puts the Kodak sign above his shop because he wants us to know that he sells quality Kodak products, not to fool us into thinking he is Kodak inc.

      Result, Kodak sells more stuff, the shop gets a new customer and I know what I’m going to get before I even enter the shop. Is that wrong?

      I thought that was the whole idea behind trade marks, reputation, marketing and stuff.

      • Gary

        Kodak was not a good example, because they sell their products through distributers who are allowed, by contract, to use the company name.  However…the point is well taken.

        Better example:  Suppose I run a little hamburger stand, and put a McDonald’s sign out front.  People come in because they think they can get a Big Mac, but finding none, and being still hungry, they buy my Gary Burgers instead.  Is this fair to McDonalds??  No.  I’ve traded on their name and reputation just to get people into the store.

        So long as you have a registered trade name, you should not have to worry about people using it to draw away your customers…online or offline.

    • Guest

      That doesnt really make much sense… If you go offline and to your local photo shop you will see that they probably will have Kodak posters and stock and Point of Sale, so having it online is no different…

      Even large companies, such as Kodak need other shops/stores/retailers to advertise their products and sell their products, if they stop people using the word Kodak, then they wouldnt really generate many sales…

      I tried using adsense to advertise one of our websites, I couldnt use the term Nokia, which is pretty silly and pointless, if you think of the number of sites out there that actually sell Nokia products… We sell Nokia products, we sell a lot of Nokia phones, we have Nokia material on our site, including Nokia logos provided by Nokia to us, we have Nokia Point of Sale stuff sent to us each week by Nokia but we cant use the term Nokia in our adsense programme.  Thats pretty rediculous if you ask me, lol

      I dont see how that is anyway dishonest or anything, does that Mean Companies like newsagents cant use promotional Coke signs even though they sell Coke products???

      Companies like the Pc place that I myself havent ever really heard of just like moaning and complaining and try to make their money by suing other people… If they had their way they would eventually register the word PC and stop anyone using it… So where would it realistically end

  • ninbroken52

    i’ve seen pepsi use coke in their ads. i say as long as a proper royalty is paid for use of the trademark, go for it.

    now, as far as the paid ads next to searches, GET OVER IT!

    QQ

    i think some EMO’s just needed some free press again.

  • Guest

    Google is not unfair it is actually very democratic and if a trademark name is targeted to create traffiic for example apple computer for people selling apple computer complementary products then it provides new possibilities in related subcategories. Google is not going to place your website next to apple in the natural search as the patents are very clear that this kind of duplication would be eliminated. Selecting Keywords and writing ads and website pages that reflect that keyword density is a job that requires human capital. We spent over 5 months of work just to get indexed for our main set of keywords that just describes the cloest match of what our product does. When we first began experimenting with keywords it was a pay per click Yahoo experiment that led to many misconceptions about how search engines actually function. Through trial and error we managed to survive and learn the new job skills required to get indexed in the main keywords and generated sales which we believe we earned in a democratic fair and impartial way. Google analytics do not reward people for keywords in the adwords campaigns that are not relevant to the page and prodct descriptions on the website. You can try to experiment with that as we did we tried a campaign with 2000 keywords which lasted about 8 hours before the price per word went up to $5 per word over the $0.10 we paid for each of them. So clearly you would end up paying alot of money to buy the word apple in an adwords campaign if you were not an apple dealer for instance. 

    If we look at this case law and we have a judge tht decides a matter then some jealous party the plantiff that sued google appeals the the federal courts this may be one version of democracy but I think it is a bit disruptive. When you are in a fight like that you must reflect on what happened and realize that suing people and having such problems is never good. The jealousy that yahoo had for google was evident with some of the things they said when I had to fight to buy the keywords from them initially at 30 cents a piece. I am not claiming to be a internet webmaster but anyone that wants to figure out how google can work for them does not really get any help from google when they pay for those words. They are taking a chance that they may get less internet traffic than more. The key I think is to focus on the desire to figure out how to do some work on your website and ad campaigns that produces good results. The thret of making it a crime to pay for the word apple computer is what no one needs. These are questions of really what a trademark actually is and when you take a word like water no one can trademark the name water. So why is the word apple any different just because someone is selling computer periperals? There is no real difference and then it becomes a war of words and a drama of the courts. So if we let the judicial review of the lower court be overturned in a case like this what we are saying is that the internet is the tool of some to promote the sale of their goods just not all people. Infringment is when you sold a computer and placed the mark on the good as if you were apple computer selling an apple. Infringment is not intended to mean that if you are selling complementary items or peripherals that apple computer buyers may want to know about you cannot use the word apple in an adword campaign. The internet is really about human thought and when you are buying words or designing a webpage with good google analytics it may not be perfect it may take several months or a year to develope. Advertising helps the website whether it is paid for or free but we live in America and to control human though in such a way to say to every person on the internet that they cannot buy the word apple computer if they are not Steve Jobs or one of his employees is unconstitutional and repressive.

    There are politicians like the former Prosecutor Rudolf Guiliani who think that every one that gets on the internet needs an id. What kind of freedom is that? This agenda of knowledege managment is really what this case is all about. The judges at the federal courts can damage all of our freedom to use the net with cases like this. Greed is not good but greed the want to take on Google for money is fueling the repression of the net. Everyone from facebook to yahoo and even microsoft are trying to beat google and get a piece of the pie as it were. The lawyers and the judges involved in this case are part of the real politics. They don’t really care about their clients rights but they seek to control the game long term. I mean who is going to make a million dollars with the keyword apple? Why is so important to regulate human thought? It is bad enough that the patents are public and the jusges coulf bother to read them to try to geet some sense of just how fair google is as a search engine there are over 80 of them to digest. Rich with the one thing everyone fears knowledge. Unlike our books stores where you can buy fiction and some magazines.The truth that it they are only punishing themselves by paying for a keyword to begin with when all they had to do was think of google as a library index and write something good that people want to know about.

    For a high court in this country to entertain such a case seriously is the marker that we are as with  this conflict in the middle east priviledged to have some  basic freedoms but that it can be taken away.

  • Guest

    As a lawyer, I like the anti-Google arguments.

  • Guest

    What Rescuecomm and other companies want is not in the interests of protecting their trademark, but in eliminating Google’s ability and right to inform consumers of other options and opinions.

    There is a plethora of issues here but I will try to address this one primary statement and two issues that arise from it.

    first to say that "Google" has a right to inform as would any human being is not true since unlike any ole Joe  Schmo, Google has a worldwide voice that is at this point easily large enough to move economies.  Therefore Google has an obligation to preserve the strength of the market thus the economy.  As you say "on the surface this seems obvious that assisting competition (in your opinion) by allowing competitors to advertise on your trademark name will help prices go down.  When you take a closer look however you will find that like my company the company who has been victimized but the leeches will resort to higher ad costs and other security measures in an effort to protect their own name.  This is paramount to forcing you to buy home security because your neighbors keep using your home as their own.  And in the end the market will lose to higher prices.

    And as an inventor and business owner I am sick of hearing about all he poor victims who claim rights to do this and that and that they are just trying to make a living (on my efforts company name and goodwill).   Ever notice that these people who change vocations like a chameleon changes colors only gripe about what is preventing them from doing x y or z?  And when they can’t do whatever they want then they blame others or the government?

    Here is an idea, instead of griping get off your backside and create your own company.  The people whose back you are resting on did.

  • Bill

    The law seems pretty clear on trademark use.  If someone wants to use your trademark, including your registered trade name and or logo, they have to have your permission, which you can withold or grant, without or without compensation.  It’s up to the holder of the trademark.  Fair use is fair use, period. 

    Using a direct competitors trademark in order to generate "optional" traffic to your site is unethical at best and illegal at worst.  Related but not competitive industries should be required to get permission to use another companies trademark, even in search engines.   They are still making money off of your company’s name and reputation.  The media is different.  News coverage of sotires about your company should be exempt just as it is in print, television and radio.

    Key words that are generic are up for grabs to the highest bidder and could allow competitors in the same industry to come up with paid or natural search results but specific brand or company names should remain the intellectual property of the registered owner.  No one else should have the right to use them in any capacity without permission.

    • Bjewelled

      I am no expert but I suspect there may be a legal nicety here that one of the legal eagles reaing this thread might comment on. Yes, the law is clear on the use by others of trademarks as far as reproducing them or publishing them publicly in whatever media is concerned. But, if I am bidding on them as keywords but not using them in my ads then they are not being seen by anyone except me and perhaps the adwords scrutineer (if such an animal exists!). Does this still constitute infringement?

      My limited understanding is that basically the law is there to prevent confusion in the minds of "consumers" – so that one business cannot pass off its products  as those of another.  In bidding on others trademarked words but advertizing my own products I am not attempting to confuse the consumer I am simply ensuring my ads get shown alongside theirs.

      Taking the  argument against trademark bidding to its logical conclusion one can envision search engines being found complicit in trademark violation for showing any ad or natural listing not directly linked to the trademark owner in the results for any searched trademarked word or phrase, i.e. every trademark owner would have total monopoly of results for their trademarks. Not a scenario I would welcome.

       

  • scott

    What if Google disabled ALL links regarding Rescuecomm so that EVEN THEIR WEBSITE did not appear.  I wonder if they would feel "left out" of the WWW.  You can’t have it all in this new world of global communications.  Either you get YOUR exposure and deal with the competition on the same level, or you step off from the world stage and go-it the pre-tech way.

  • http://www.2all.co.il/Web/Sites/erezshlez/PAGE9.asp ??????

    one must say that the campains are getting harder to pay for.  i think that google much stop this.

  • http://www.todaymybirthday.com Guest

    For the last four month my ads were doing good for small money about 10USD/day but starting from last month I get no click at all for my small website because google ask me to pay 4-8 US Doller for one Click  to compete for my keyword .this is unfair from google.

  • david

    I don’t think you can say to Google (or any search provider) that all roads must lead to the trademark holder. For example if I want to search for "apple ipod" because I want to shop for iPod accessories, I’m expecting that when I type "apple ipod" and hit enter I’m going to get tons of hits on any page that has those two words. It’s unreasonable to expect Google to restrict the search to ONLY pages that have those words in them that are owned by the trademark holders of the word iPod. If that was the case Google would be useless for almost any search of any kind.

    I’m not sure if fair use of the trademark terms would apply here. I can’t see that I would have to obtain permission to use the word iPod if I were to write a blog about something and use the term iPod, like a review or how-to article. Of even if I want to ask customers, "looking for an iPod? Try our new Acme Portable Digital Media Player Model #1 instead!"

    Rescuecomm can reasonably expect that Google would return Rescuecomm’s website as the first result (even if they didn’t pay extra for special placement or not), but they can’t expect Google to block all other referances to their company or any trademarked terms.

    You have to accept that in the marketplace (of the present, past, and future) that other people will use your trademark names to sell their stuff. It’s just part of the way the world works. Anything that stops that from happening restricts our freedom.

    • Bill

      If you want to search for "Appl iPod Accessories", then why not type in all 3 words instead of just the registered trademarks, "Apple iPod"?  If Google allows the broader search to return results for competitors, it should be deemed a copyright violation.  Adding the word "Accessories" should limit the search to just that, accessories compatible with an Apple iPod, not competing MP3 players.  If you want to see all available MP3 Players, then type in "MP3 Players", a generic search. and you would get the results of all manufacturers, including Apple.  You will probably also get anyone who makes accessories and related items, it would just be a much longer search results list..

      The generic search or the specific search would both get you the desired results if competitors were restricted from using "Apple iPod" as a paid search word for their products.  It’s no more difficult for the end user than learning how to use the on-line card catalogue at a public library.

  • BL

    I work with this sort of thing on a regular basis (weekly). The issue is there needs to be clear distinction with the ad. As everyone else has stated you often see advertisements stating that 9 out of 10 prefer this brand to that brand. This is allowed because there is no consumer confusion as to who this advertisement is for. When Pepsi says Coke everyone knows Pepsi is not inferring that they are Coca Cola. Similar to domain names infringing on trademarks. It is whether the advertsiement creates confusion. If I simply bid on Pepsi without making it clear I am not Pepsi I am infringing on their mark. If I place an ad that states "Better than Pepsi?" similar to Strivectin using "Better than Botox?" then I am not representing myself as Pepsi I am representing myself as a competitor or alternative to Pepsi. If you cannot distinguish yourself in your ad you are a simple thief and that is all there is to it.

  • http://www.warecentral.com JAS

    Big fish eat small fish whole. Follow these events..

     

    1) Author develops a program in 1997 and posts downloads for his freeware programs at geocities.

    2) May, 2000, developer removes his very popular freeware downloads from geocities and posts a licensed/registered shareware copy.

    3) Thereafter, apparently, a major publisher requests copy of freeware program from a third party and posts the program download without authorization from the developer.

    4) At the major publisher site the reviewer of the freeware program includes a competitor program name within that text with a direct link to the competitor’s website.

    5) Downloads exceeded 300,000, actual visits to the published post undoubtedly many times over that number, providing an independent free source and advertising link for the competitor.

    6) In addition, the competitor also continues to post ads at search engines using the name of the program in the “keyword” heading of their ads—an ad that will appear with every search for the competing developer’s program.

    7) Contrary to ads posted, the competitor neither provides any download copy of the popular program nor is the keyword used found anywhere at the competitor’s websites.

     

    The profiteers: Search engines, the major magazine publisher, and the competitor.

    The developer: .zip

     

    Who are best able to dis-ad-vantage little fish? BIG FISH.

  • http://horisly.blogspot.com horisly

    when people search for a company name, they only want content from that company, not paid content from competitors or any other organization that might be targeting that keyword (like non-profits, critics, or news agencies).

     

  • http://www.naughtyneo.com Naughty

    In my opinion as long as the adwords advertisers link clearly says, sponsored links this should be fine. According to me competitors should be allowed to bid for trademark keywords, but should not allow those keywords to be placed in their ads.

    Example if someone is searching for "Honda Cars", there is nothing wrong in allowing ford to bid for those keywords as long as their ad says, "Ford Cars". If they place an add saying, "Better than Honda Cars" then it is not right.

    If the verdict goes against google, then soon someone will file a lawsuit for organic result as well. 

    • http://www.green-trust.org Steve Spence

      So, what is your opinion (other than it’s marketing suicide) for Ford’s latest "We are now as good as Toyota" ads?

      Steve Spence
      http://www.green-trust.org

       

       

  • http://realtinfo.net/ Realtinfo

    Real estate Donbass unified directory of real estate Donetsk Ukraine. Joint base property Donetsk Ukraine, real estate agencies, company managers, developers, bulletin board for the real estate, construction, equipment, user-friendly search headings pictures of the real estate, rental, sale of commercial and residential real estate, new and secondary real estate market

  • http://www.fiancee-visa.net Fiancee Visa Attorney

    Look forward to more articles from you and to find out what the other people in the law perfession think of this.

  • http://www.moovinonup.com/ SEO

    anyone remember american blinds this will always happen

    • http://travel-guide2india.blogspot.com Famous tourism places in India

      I agree to you !!!!!

      Really funny , Isn’t it???

      • http://www.bluerayripper.nethttp://www.bluerayripper.net Blue Ray Ripper

        yep.

  • http://www.redtube.eu Guest

    funy things

  • http://www.neotericuk.co.uk/web-design.php website design

    Its really funny!!

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