Last April, plenty of people queued up to criticize Utah’s Trademark Protection Act. The state’s General Counsel, the EFF, and Danny Sullivan all took turns calling it a bad idea.

Nearly a year later, someone listened. And the Google Public Policy blog applauded:

Although the Utah law had not yet been enforced, it represented a big potential problem for consumers and advertisers alike. Consumers would have been prevented from seeing the kind of comparative ads that help them get the best deal possible. And businesses (including small businesses) would have been prevented from advertising products that they sell.

The law also would have hurt free speech, with citizens being unable to run ads in protest of a certain company’s business practices, for example.

Fortunately, the Utah legislature amended the bill this week and removed the provisions of the law which prohibited this type of keyword advertising.

At the time, the bill looked like a clever little reach for revenue by the Utah legislature. Trademark owners would have paid $250 to have their marks entered into a database, to be checked by search engines to avoid infringing upon them.

Not everyone found the change to their satisfaction. Utah-based 1-800-Contacts wanted the bill passed as it was, and complained bitterly about the amending that took place, according to ClickZ:

1-800 Contacts General Counsel Joe Zeidner doesn’t think the threat of lawsuits is the real reason for Eastman’s decision to appease the search giants. “(Utah Senator Dan Eastman) must have had some secret agreement with these big search companies,” said Zeidner. “We are still just dumbfounded.”

1-800-Contacts plans to continue “four or five” legal disputes over trademarks, with Zeidner threatening to make the Trademark Protection Act an issue again.

1-800 Contacts lost a case against another rival WhenU.com on the same issue. This set a precedent and following rulings were that keyword advertising isn’t considered a trademark violation. 1-800-Contacts is based in Utah and that’s where the irony starts. 1-800-Contacts was part of the opposition this past April to a controversial law to ban bidding on competitor’s keywords. Even though they were guilty of the same. The law was dropped the day it was to go into affect after Utah lawmakers had some discussions with search engines. In the meantime it was an embarrassment, as is this new development.

A case that helped set precedence was that of Geico suing Google for having letting their competitor bid on their brand name.

Just yesterday someone I know asked me for advice about his keyword woes. After spending $20k a month on AdWords his account was banned. Why? Copyright infringement – he was bidding on a brand name as an affiliate. He asked for an exception and not only was his request unanswered, his account was banned for good. No recourse and no one would who had any power to change that would so much as speak to him. So in some cases Google can come down hard on this issue, probably because of lawsuits. But it seems like this is selectively applied. What I mean is, did the company enforce this policy through Google, or did Google decide to enforce it?

I like to see freedom in advertising – customers aren’t confused when they type in 1-800-Contacts and they see another company’s name in the mix of ads. I’m not sure why 1-800-Contacts trying again, given their slim chances and double standards. Either way, I hope to see these issues stay out of court.

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