Google's Ban of an Anti-MoveOn.org Ad

Whip-hero writes in with an Examiner.com story about Google's rejection of an ad critical of MoveOn.org. The story rehashes the controversy over MoveOn.org's ad that ran in the NYTimes on the first day of testimony of Gen. Petraeus's Senate testimony. The rejected ad was submitted on behalf of Maine Republican Senator Susan Collins — its text is reproduced in the article. The implication, which has been picked up by many blogs on the other side of the spectrum from MoveOn.org, is that Google acted out of political favoritism. Not so, says Google's policy counsel: Google's trademark policy allows any trademark holder to request that its marks not be used in ads; and MoveOn.org had made such a request.

Comments

using a trademark <> infringing a trademark

[sed quid in infernos]

There are many examples of using another's trademark in an ad that do not amount to trademark infringement. The nominative use exception allows use of another's trademark to refer to the trademark owner's product or the trademark owner itself when:

[f]irst, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

Based on the contents of the ad reproduced in TFA, this ad could easily qualify for the nominative use exception. The determination couldn't be final without looking at the whole ad itself, but the snippets in the article seem to be right in line with these requirements. Certainly, Google has the right to implement any trademark policy it wants. But their policy causes them to reject many ads that are not infringing on others' trademarks. The same policy would stop ads that described the wrongdoing of any organization that has trademark rights in its name (as most organizations that deal with the public do).

Re:Sooo....

[larry bagina]

Actually, there is a statutory Fair Use for trademarks. A nonowner may also use a trademark nominatively--to refer to the actual trademarked product or its source. In addition to protecting product criticism and analysis, United States law actually encourages nominative usage by competitors in the form of comparative advertising.

Of course, Google has been sued numerous times over ad keywords and content, so it's not unexpected.

Re:Sooo....

[raehl]

Either way, if their trademark use policy doesn't allow for nominative use, it's faulty and needs to be fixed.

Didn't this policy result from Google getting sued for allowing competitors to buy ads that keyed off a trademarked name?

I.e. if you searched for 'Hertz rental car', you'd get a bunch of Avis ads because Avis had paid for their ads to show up whenever someone searched for 'Hertz'?

Assuming that's the case, you can hardly blame Google - they're screwed either way.

Re:Sooo....

[background image]

I live in the United States, a country that was NEVER intended to be a democracy.

No, you live in the United States, a country which, if it is to survive, must do something to improve its public education system.

The fact that it's possible to find Americans in places like Slashdot loudly and repeatedly trumpeting the supposed 'fact' that the USA is not or was never intended to be a democracy is, quite frankly, bizarre and not a little disturbing.

I assume that, like others of your ilk, you would like to say "it's a republic, not a democracy," but even if that wasn't what you were thinking, you're still quite wrong about the US.

Democracy is a word that indicates a wide degree of citizen participation in either the selection of government officials, or in the direct governance of the state itself. But knowing that a state is a democracy is not the same as knowing how that state's government works.

The United States' peculiar flavour of republic, for example (with its Electoral College), is quite different from e.g. Canada's Constitutional Monarchy, but both are indisputably representative democracies.

I suspect that the distinction you really wished to make was between a direct democracy and a representative democracy and you may well be right that the United States has adopted more of the features of a direct democracy than its founders intended, but it's ridiculous to deny that it is and always has been democratically governed.

Interestingly, I came upon a stub article (for the term Republican Democracy) on Wikipedia while assembling links for this post. It's rather weakly written and seems to exist to bolster these weirdly popular claims that the US is not a democracy (I find this Wikipedia entry a little chilling; is somebody astroturfing the idea that the US isn't a democracy?):

However, there are distinctions between the terms "republic" and "democracy," as the latter retains many of the same qualities of a republic, yet adheres to no distinct political order or set of laws. Therefore by its original understanding, "democracy" could be qualified as anything from representative governance to individual and mob rule. And in this sense the word "democracy" is often used too lightly and erroneously to mean "republic."

But it makes the same mistake that is usually made by those claiming that the US is not a democracy; that is, it appears to confuse a form of government (e.g. a republic) with a means of selecting such a government's officials (i.e. via democratic institutions). A republic need not be a democracy, and a democracy need not be a republic, but the US republic is a democracy.