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Google Loses AdWords Case
TheChillPill writes "Google has lost a case brought by a company whose name was being used by Adwords users. Insurance firm GEICO, who had not been using Adwords themselves, objected to Google allowing it's advertisers to use the term in their campaigns." This is a reversal for Google based on an earlier story.
There is no such thing as bad publicity. Geico just got their advertising courtesy of Google and didn't even have to pay Google for it. Slick move.
Sick of stupidity? http://www.patentlystupid.com
Its certainly a valid URL. Each domain name must start with a letter or number, and then may be made up of letters, numbers, and hyphens, to a maximum of 63 characters.
(Thanks to Wikipedia)
This is a reversal for Google based on an earlier story.
Don't be too sad. This isn't really a reversal of the earlier decision. It's actually two seperate but related issues. The first decision, which Google won, concerned using a trademarked term to trigger an ad. The second concerned using a trademarked term inside a competitor's ad. So if I pay Google to put up an ad which reads "B'Trey's Auto Insurance - best in the business!" whenever someone searches for Geico, I'm OK. But if I pay Google to put up an ad which reads "B'Trey's Auto Insurance - better than Geico!" then I run afoul of this ruling.
I'm not real happy with this ruling - unless the ad is fraudulent (ie makes untrue claims about the trademarked term), then I don't see where Geico (or any other trademark holder) has a legal right to protest. But it's nor a reversal of the earlier decision.
"The legitimate powers of government extend only to such acts as are injurious to others." Thomas Jefferson.
I used GEICO when I was overseas because they provided insurance to soldiers, from 1991 to 2003 I used GEICO, then I had an accident and filed a claim.
Their adjuster did not really even look at the vehicle and they only repaired the visible damage without even looking underneath the vehicle, when I griped to a person making a followup call, they fixed some of the issues and left the rest unrepaired. Then they would not renew my policy.
I am not the only person they have done this to, they are hands down the worst insurance agency I have ever dealt with, and I am sure that my daring to complain is what lost my coverage. Now I have better coverage at lower rates with another firm.
I hope this is reversed, because geeks do not let geeks use GEICO.
It's not the same case. One concerned using a trademarked term to trigger an ad. This one concerned using a trademarked term inside a triggered ad.
"The legitimate powers of government extend only to such acts as are injurious to others." Thomas Jefferson.
Google makes money off of ads which are supposed to be "related" to your search query. Misusing someone's trademark to link to other companies is not legal.
Wrong on two accounts. First, it's not a misuse. Other insurance companies are certainly related to a search on "Geico." Second, it is not illegal to display ads based on a trademarked term. It's only illegal to display an ad which uses the trademarked term inside the ad.
"The legitimate powers of government extend only to such acts as are injurious to others." Thomas Jefferson.
That's why the "Pepsi Challenge" is between Pepsi and "some other drinks", or detergent is between whatever and "The market leading brand", etc.
But if I pay Google to put up an ad which reads "B'Trey's Auto Insurance - better than Geico!" then I run afoul of this ruling.
Do you violate the ruling or does Google for accepting your business?
Is it now illegal to mention a competitor in an ad for your own service or product?
=Smidge=
>Do you violate the ruling or does Google for accepting your business?
RTFA, that has yet to be decided:
According to GEICO, the court has stayed the trial for 30 days to give the parties an opportunity to settle. If the parties do not settle, the trial will continue on the question of damages and on the issue of who is liable: Google or Google's advertisers.
There is much cruelty in the universe, John.
Yeah, we seem to have the tour map.
Technically, the laws are there in order to protect the consumer, who might otherwise become confused as to which product comes from which producer.
With current trademark law, I, as a consumer, can rest easy knowing that when I buy a gadget that says "Sony" on it, chances are it's Sony that marketed it. Without trademark law, Samsung could happily sell Sony-marked merchandise if they figured it would be profitable to do so.
sigs are hazardous to your health
But if I pay Google to put up an ad which reads "B'Trey's Auto Insurance - better than Geico!" then I run afoul of this ruling.
I doubt that the scope of this ruling includes such marketing hyperbole. Not long ago, if you Googled on "GEICO", you'd see a couple of sponsored ads that read simply "GEICO Auto Insurance" but linked to non-affiliated companies or agencies. This was clearly misleading, and I would hope that this is the sort of thing addressed by the ruling at hand.
This is not to say that GEICO isn't trying to get a ruling against any use of their trademark (they are), but the courts generally only prohibit misleading uses of a trademark ("Buy GEICO Insurance") while allowing non-misleading use of a trademark for comparative purposes ("We're better than GEICO!").
No, it's not a reversal. The court decided on one situation that had been left open by the earlier ruling.
Apparently, displaying competitors' ads in response to a query for a trademark is permissible; the court ruled, however, that the competitors' ads may not contain the trademarked query terms.
It seems to me that that strikes a pretty good balance. Allowing the trademarked query terms to appear in the ads carries too much risk for confusion, and it has little benefit for consumers.
So,is OK in response to a query for GEICO, butis not.
However, even under the current ruling, the target of the ad link can still do price comparisons between Acme and GEICO. Consumers really don't lose anything through this ruling; the court just came up with a simple rule by which targeted ads can be made a little clearer and less confusing.
Actually, it's more a matter of being able to back up what you say, or relying on a competitor's own published info. For example, a Subway ad might mention that one of their Super Tasty Toasted Meat Thingy Sandwiches has less saturated fat than McDonald's Big Mac. They're able to say this comfortably because McDonald's actually publishes the information. That's a lot different than saying "our sandwich is better than McDonalds' burger" because that is a very subjective comparison. When companies do want to make claims like that, the language always comes out, "in recent clinical taste tests..." with screen footers referring to the source of the info. Point is, the more narrow the comparitive/competitive claim, the more likely it is to get into an ad... but it also tends to sound drier and have less overall appeal.
Where that sort of naming-names comparison really works is in highly specialized markets where the consumers are keenly aware of the available products and actually want to compare specs. The nearest thing to this for the general consumer audience is probably the automotive market, where the manufacturers routinely compare horsepower, mileage, etc. with specific other cars.
There's nothing protecting a company from a competitor's "negative" ad, just laws protecting them from liable (actual false information that impacts their reputation). That's why you don't usually see an ad from Ford saying that "don't buy a Chevy, they're more popular with mean people" etc. Just because an ad points out something inferior about the competition (truly, a "negative" ad) doesn't make it illegal. But regardless of the legality, most advertisers (with the notable exception of political campaigns) stay away from overtly bashing the competition, since they know that it's a sign of weakness. If you can't sell on specific merits, you compose ads that just convey a nice feeling and hope that works. If you have to resort to trashing the competition (however much they may deserve it) you're going to alienate some customers just because of your tone. As long as advertisers don't overtly deceive, they're pretty much able to say anything, which is as it should be.
Don't disappoint your bird dog. Go to the range.
Or perhaps just plain wrong.
The basis for trademark law is the idea of unfair competition.
So let's start testing this.
It is legal to mention your competitor's trademarked name to say you are better than them, if it is true. And by true, that means proveably true. This is because it isn't unfair to state the truth. Not that if you can't prove it, because it is a matter of opinion (taste tests) or because you are playing tricks in your tests (like the paper towel strength tests), then you use "brand X".
It is legal to use a companies' trademarked name for non-commercial purposes. This is because it isn't competition since it isn't even a commmercial endeavour.
It is not legal to use a companies' trademarked name to lie about them (especially commercially), that would be unfair. Although it's pretty much unfair to lie about a company anyway even if you did avoid their trademark.
It is not legal to masquerade as another company. For example, if I make breakfast oat-rings, I cannot just print up a Cheerios box and put them in it so they sell better. That would be using the properties of General Mills against them. Every dollar they spent advertising or building a name would actually work for me too (and thus against them), I'm unfairly leveraging their efforts.
Now, what about just mentioning them to say you are like them (or perhaps unlike them), as in this case. It is possible to do this legally. For example, if I make an aftermarket HP-compatible ink cartridge I can use their name to indicate what it is. I can say "HP-compatible". Or even "compatible with HP printers" or "replaces HP cartridge #XXYY-035". However, there is an easy way to get in trouble in this case. If I made my box say "HP" covering 90% of the front of the box and my company name in tiny lettering in the corner or on the side, I would be masquerading as an HP product (at least long enough to get your attention), and again that would be unfair. See Negativland's U2 album http://foetusized.org/u2.html for example.
This can happen for regular advertising too. For example, Miller's ads could say "Bud Bud Bud Bud Bud Bud (Miller)" and basically associate themselves more strongly with Budweiser than their own name. That would be unfair too. It even could happen with a (normally legal) comparison ad, like the "better than" ads above. You could truthfully mention you are better than the other product, but spend so much time (or space) in your ad doing it that you are using their name to associate with yours. Obviously all of this is subject to some interpretation.
So, to go to the AdWords thing, is it illegal? Well, you are using a competitors term and using it commercially. So the competition part is there. But the question is, is it unfair to pop up when your competitor's trademarked term is entered. In my opinion, it probably is. In this case, your product's "box art" (the item that attracts people to look at your product/ad) is essentially 100% your competitor's trademarks. It's like that Negativland cover. When someone sees it from far away, it looks more like your compeitition than yourself; and by design. Information that says that this isn't really your competitor's product is available in your detailed ad, but isn't nearly as visible, and requires a more detailed examination, like hiding your name down in the corner or on the side of the box. Furthermore, every ad dollar your competitor spends is twisted to work against them by helping you. The more people learn their name and enter it into the search box, the more your name pops up.
Thus, in my opinion, buying adwords of your competitor's trademarks is probably unfair competition and thus illegal. And if judges think like me (I shudder to think) they have no choice but to rule against Google. I don't feel it should be illegal, so I would like Congress to step in and change the law in this case. Will they do it? Probably depends on who has the most lobbying money.
http://lkml.org/lkml/2005/8/20/95
If I recall, the thing about the taste tests is that the testers were only given a small sample of each soda. When taking a small taste of something, people will often prefer a sweeter flavor. Thus, Pepsi, being sweeter, won these taste tests. Over the long term, though, that much sweetness becomes cloying and people will prefer the less sweet option. This is evidenced by the fact that "case tests", where people are given a larger quantity of soda to drink at home over a period of time, generally show a preference for Coke.
You don't need a weatherman to know which way the wind blows.