Slashdot Mirror
Google To Be Sued in UK For Trademark-Linked Ads
nuke-alwin writes "Channel 4 news in the UK is reporting that Google will be sued by Lastminute.com for the way it sells advertising. Adverts from competitors will now be displayed when searching for some trademarks. Google says consumers will benefit. Some trademarks become so familiar that all similar products are known by the trademark name: Coke and Hoover, for example. I think searching for these kinds of words should allow competitors to advertise their similar products."
They expect Google to register their trademarks for free on their search listings? Even the US government costs money.
Trademarks are to identify the source of goods. Trademarks are not to protect your good from competition. Nor are the copyrights to protect your trademark from use by others outside of identifying the source of goods.
paintball
boo fucking hoo.
If you mod me down, I will become more powerful than you can imagine....
Oh, Google's being sued. I thought Google was suing the UK. For $100 billion canadian...I've got to stop reading this at five in the morning. Don't ask me how many times it took me to type that sentence. Please.
This is obviously going to create a feeding frenzy for googles advertising sales.
I do however think that it may affect their adword partners, who may be hesitent to place competitors adverts on their sites.
Participatory Governance : The only feasible option for a real democracy, where everyone really does have a say.
I've been reading the Wikipedia on genericized trademarks (off-topic: shouldn't it be "generized"?) and it doesn't give too much information about the process of certifying the genericity of a trademark: it seems to happen per se if the trademark owner doesn't take steps to avoid genericization, and sometimes even if steps are taken. Would anybody please point me to a better reference?
"Known" in informal usage is one thing. Actually marketed that way is quite another. Would you expect to see Pepsi brand "coke" or Dyson brand "hoovers" being advertised?
If you allow your trademark to become a generic term, then eventually you may lose the protection it provides. Trademarks are defend-it-or-lose-it. I say may lose because AFAIK this particular principle, of using a trademarked term as a generic term in a commercial search, is a new legal area. So at least we know that a lot of lawyers will make a lot of money out of it. Which is nice.
If you were blocking sigs, you wouldn't have to read this.
They should deny Google in their robots.txt then they wouldn't be on the same search page as their competition.
The pages at Google.com are google's property so I fail to see how this lawsuit can go anywhere.
~Dan
An SQL query goes to a bar, walks up to a table and asks, "Mind if I join you?"
Coke.. okay, maybe. Hoover? I never hear anyone say, "go get the Hoover."
I do hear people say, "thats a nice Ipod", when I have a Sansa. Even more frequently: Kleenex being substituted for tissue, or, "will you xerox this for me?".
There are much better examples than Hoover and Coke... those arn't even the ones that spring to mind when I think of popularized eponyms.
If I put "lastminute.com" into Google, they've got about the top 6 links in the search page. The URL of their competitors is clearly shown elsewhere.
Are lastminute.com in trouble? Have they got SCO-level management fighting against the reality than anyone can set up what they do (and a lot of their site isn't "last minute" anyway).
You know what's funny? The most likely impact of this move is that more people will link to this slashdot article and drive this up the main index, to the detriment of them.
Google is still an optional service. If you don't like how they deal with you, don't use them.
"Thanks for all the money you paid to us. We've used it to buy off ISO among other things" -Microsoft
How is this example any different: I walk into the store looking for a Pepsi. I ask the clerk, "where is it?", she says, "It's over there next to the big Coke sign.
Think about that for a second.
Now, lets take it step further. Lets say I make a searchable yellow pages. It quite literally searches scans of the yellow pages and pulls up the pages that might have what you are looking for. You're going to see ads for competitors when you use trademarked words.
Of course though, this is in the UK, whose advertising laws are MUCH different than in the States. Google is likely to lose there.
If that were the result, the winner would get a delisting from Google. That's one of the many reasons I'm never going to be a CEO.
Burn Hollywood Burn
You know the general mantra of people who support advertisements (for whatever interest they have)? They say advertisements increase competition and are, therefore, ultimately beneficial to the consumers. Well, I think Google's way is a great implementation of this principle.
Google: keep it up, I'm rooting for you.
lastminute.com and Auto Trader: FY.
"The agriculture ministry is not in charge of Gundam" - Japanese ministry official.
Sorry! Kleenex lost it's trademark ability because it allowed everyone to call their tissues kleenex's also.
Same with xerox. And aspirin. Jell-o. And even "google" to mean generally an online search.
That is why when you have a powerful trademark, you sue anyone who comes close to your territory like this - even if you might lose. If you don't, you dilute your trademark and possibly lose your trademark (at least partially) and have it become genericized.
Now Google is facilitating genericizing of trademarks.
I would be *pissed* and would probably sue Google to STOP doing that.
Anyone creating an adwords campaign would be required to click a checkbox "This keyword is a trademark of another company". The ads would then have a small label saying they are from a competitor. No one would be able to claim that customers are being deceived in any way.
Stop worrying about the risks of nuclear power and start worrying about the risks of not using nuclear power.
That's not the point. The point is the phone book calls them plumbers; it doesn't list them under a brand name (like whatever the equivalent is for Tesco's in plumbing.) Tesco would have no case if a Google search for "supermarkets" threw up ads for non-Tesco supermarkets. What they object to is a customer searching for "Tesco" and being advertised something else. Whether their objection is valid is a matter of debate but there's no analogy with the phone book.
...but when you look in the phone book for 'Tesco', do you really want to see the numbers for all different supermarkets? I wouldn't - I would want the number for Tesco. If I wanted to select a supermarket, I would look up 'supermarkets' in the yellow pages.
Max.
"Google say that consumers will benefit."
"I think that searching for these kind of words should allow competitors to advertise..."
It doesn't matter what Google says, nor what this ignorant fool thinks, it depends on the law of the land. If certain competitive advertising is illegal (it may be in the UK, I'm not sure, but it is illegal in many countries), then that's the law.
What happened to "Do no evil?"
The anon parent is absolutely right. LastMinute, Tesco et al probably have a duty to their shareholders to stop any sort of misuse of their trademark.
It's not all that easy to lose a trademark -- Google is still in place, as is Xerox -- but the risk is there and it has happened, cf. the other examples above. In this case, if Google treats a search for "Tesco" as a search for "supermarket", and Tesco doesn't protest, Tesco is probably implicitly agreeing that their name is a generic name for a supermarket: at least, a competitor could argue in that way.
The "Similar pages" link already shows you the competitors and has done so for about 10 years now. Why hasn't anyone sued google for that?
Stop worrying about the risks of nuclear power and start worrying about the risks of not using nuclear power.
But again, that's not what google is doing. It is showing in the main results the 'real' matches (just like a directory would do) such as Tesco.com, and then in the advertisements, other competitors. I see no problem with this...
If they win against Google, I wonder how much farther they will go?
For example, if I go to Amazon and search for some specific, branded, product, Amazon includes on that product's page a list of products that people shopping for that product bought. These are often competing products. Will the trademark owners object to this?
I think I agree.
Max.
If you display AdWords on your site, you can still block certain "keywords" from appearing, or certain sites altogether. This is companies bitching at Google for displaying competitor ads in search results on Google's site. Displaying a link to a competitor when running AdWords on your website was always a concern (considering the whole technology behind AdWords to begin with), so Google has always given you the option of blocking certain content from appearing in ads that are displayed on your site. I find it ridiculous that companies would think that they control the display of competitor ads on a search engine result that doesn't even originate with them.
If Google responds with "We're sorry your are unhappy with our list of your company, we will of course remove all references/links to your company from our listings. And BTW, for now on the results listing your competitors were not matched by using your trademark, but rather by data about what links people clicked on in the past after searching for a specific string."
Personally, I do think it is wrong to bombard someone searching for a JohnWidget with SallyImitation Ads. Phrased another way, "If you don't want to lose customers, you'll pay us to display your ads instead." There are a lot of examples of this same pattern. Like when the phone company charges you extra to not list and distribute you number to all the telemarketers. Like if you don't pay your "protection" money... Well you get the point.
It's not a copyright issue, but rather one of principal. It has become an all too common, and too frequently accepted practice to push people away from what they wanted based on revenue (under the guise of 'for their benefit').
Businesses aren't to blame. The herds of mindless drones that not only don't think for themselves, but accept this tactic are to blame. That's why businesses do it, because it works. Consider this the next time you try to get a drink at a drive-thru and have to repeat that you only want a drink five times while they try to sell you their entire menu.
Since when is it any random person's right for google to be an accurate and/or useful search engine. Some thing just get taken for grated these days. Even if they are paying for advertising, the exact implementation of search probably wasn't included in the contract. These idiots can go fall in a hole.
if there are 200 competitors is google gonna find them all how and in what order are they gonna list them?
...I don't pay attention to ads anyway. Excuse me, I'm getting a tense, nervous headache.
[drinks Coke from a classic bottle, holding the label to the camera] *contented sigh* [pops an Anadin] *instant pain relief face*
Better. Oh. Time to take the kids shopping. L8r.
[grabs basketball, pulls on the Nike's making sure not to obscure the cameras' view of the swoosh]...
Operation Guillotine is in effect.
But I agree in part. If you search for the term 'Coke' and 'Pepsi' comes in second in the advertiser list, what does that mean? It means Pepsi is benefiting from the Coke trademark. They are in essence advertising their product using the trademark. Maybe google isn't the one to go after though, maybe it would be Pepsi for paying to advertise their product using the Coke brand name. I see no problem if Google returns Pepsi.com anywhere in the search results (even on top).
Think about it this way. Would it be OK for Adidas to take a full page ad in the newspaper with 'Nike' in big letters and "New Adidas store opening Saturday at 3475 Greenwood Ave."?
Interestingly, google wasn't so happy when "google" made the Merriam-Webster dictionary as a verb. I think it's going to be interesting to see what their response to this will be.
Gentlemen, you can't fight in here! This is the War Room.
The intent behind trademarks is consumer protection, not to give companies monopoly rights on a name. The only responsibility you have when using a trademark is that you don't misrepresent the origin of goods.
So, advertisting your product in response to a search for a competitor's trademark is in the public interest and falls within the intent of trademark law, as long as you don't misrepresent yourself as the trademark holder.
My understanding about trademarks comes from u.S. law. Is there something about U.K. law that's different?
There _may_ be some dillution aspect to this, however, if Google doesn't mix and match brand names in search results, I really don't see a problem here.
The best analogy I can think of is in a store.
If I asked a shop keeper, do you carry brand X, and he responded, "No, but we do carry brand Y," that's is clearly not infringement.
If the shop keeper says, "Yes we do have brand X over here, but have you considered brand Y? Many people find it to be a better value." This is also _not_ trademark infringement, even if it's his financial interest to recommend brand Y (e.g. better margins or whatever).
I don't really see much of a distinction between the shop keeper analogy and Google search terms. The only thing is that they sell the rights to put ads up based on a word which the trademark owner claims to own. But since no reasonable person would be confused by this and believe that Google owned the trademark, it's hard to imagine how Google could be sued.
Google can probably avoid a lot of this controversy by actually just identifying the results:
/trademarks.txt file on the servers.
[official site] Tesco Supermarkets
[other site] Cheaper than Tesco!
This could work based on domain names, data mining, and/or a
Google could also allow personalization, letting people choose whether to see the official/competitor's sites and in what order, as well as letting users block lists of trademarks they never want to see (e.g., Coca Cola, Nike, Microsoft, whatever).
So will Google return results for other search engines when a user submits "google"?
Hmmm, Google should practice what they preach if they want to dodge this bullet. Google is a generic search term, yet when you Google google you don't find any of the competing search engines in the top 200 finds (more perhaps, but I stopped looking). How's that for giving consumer choices and promoting competition?
So, are they going to provide a link to Yahoo when someone searches for "Google", one wonders?
Best wishes,
Bob
The phonebook analogy could work:
... JohnThomas on 0022-555-8974").
You look up "Tesco" in business pages. Alongside is an ad for "Sainsburys". No harm there in my book. But then that's partially because we know that Sainsburys is different.
How about if the company was called "PeterMark" (ahem, measuring services). Next to it an ad says "looking for measuring services try
Is that OK. I think so, the "PeterMark" trademark owner* would probably be a bit pissed however.
---
* I've assumed the name is distinctive in the field and not descriptive and so is deemed to warrant a RTM.
The logic behind this doesn't make too much sense to me. If I search for "Wal-Mart," I should only, for the most part, get results involving Wal-Mart. Why would they return results for Meijer's? I didn't search for superstores or anything like that...I searched for Wal-Mart. Now if Meijer's came up because they had Wal-Mart-related search-friendly data on it, wouldn't that be misleading on Meijer's part?
Imagine if a supermarket put up a big advertising board at the front of the store with pepsi branding and trademarks, but underneath it was just coke cans for sale, with the whole thing paid for by coke. Pepsi would be pissed at coke and the supermarket, and probably institute a trademark lawsuit.
A much better analogy would be if a customer walked into a supermarket with no advertising out front and asked an employee for Pepsi. The employee directed them toward the soft drink isle where there was a large ad display for Coke (paid for by Coke) and further down the isle is the Pepsi which the customer wanted in the first place.
This scenario is much closer to the Google issue with the excetion that Google isn't a store and doesn't even get a cut of the Pepsi sold; only the Coke. Now while I personally think Google should be able to link whatever the hell they want; it's their website but they may be guilty of trademark infringement if they did something like Pepsi but without the slashcode to prevent rickrolling. This would at least be something.
The fact that they aren't doing anything illegal or done before in other venues (see above) tells me that Pepsi can go pound sand, and by Pepsi, I mean the vendors suing, as they have brick and mortar precedent in Google's favor.
...as long as searching for 'Google' brings up results for Yahoo, Ask.com & Live Search...
First, UK and US advertising laws are different. Shocking! On UK TV you cannot mention the name of competing products. In the US you can see an ad for Ford where and it says, "Better than Chevy three years in a row". In the UK this is not possible. You can only say things like "better than the others." Things are changing, yes, but by-and-large this is the case.
Which means that Google allowing competitors to bid on trademark terms is something unusual in the UK. Which is why UK business are so upset by this. Tesco has publicly stated that they will not be bidding on competitor's terms because they prefer the way UK law operates. I'm sure others will be less upstanding. There's a recent legal precident for Google's sudden change in the UK (this isn't allow in Europe, where the precident doesn't exist) so lawsuits might be a way of reversing this.
Second, from a business perspective there's a couple of big issues here. Allowing competitors to bid on your brand terms means that when someone searches for your company - your exact trademarked brand - competitors will appear in the paid search area. This isn't like looking up plumbers (a generic term) in the phonebook at all. It's more like someone searching for 'Ford' and then not seeing it listed in the paid area at all because competitors have out-bid them on the term. Think about it: a business has to compete with everyone on the internet to appear in paid search even when customers search for their own, legally owned and protected, trademarked terms. Insane. If someone's directly searching for your brand what possible reason is there to show other listings, except for Google to make more money? It's not a customer benefit.
The other business issue is Google. They are virtually a monopoly. If want to have a successful search campaign in the US or the UK you have no choice but to use Google. The idea that they are optional is a joke. It's like saying you want to sell DVDs but not work with Walmart (look up what percentage of DVDs Walmart sell in the US). Technically possible but practically ludicrous. And Google know this and exploit it. Google's business is making money from ads and every single method to achieve this is exploited thoroughly. If you don't believe this, do something that threatens Google's revenue and see what happens to your account.
Last Minute talking about suing makes sense to me. They are sick and tired of being pushed around by a monopolist who uses questionable practices to extort money from their customers. As Google becomes bigger, stronger and even more of a monopolist this is going to be more common. Hopefully we can nip it in the bud before they completely own our search, desktop, office applications, email, and information.
Let me just Google that...
I went to JB Hifi and asked for which iPod (trademarked) is the best. Does it have FM Radio? Are they best value?
Is it illegal to direct the consumer to an iRiver or Samsung player?
What if iRiver or Samsung was giving the salesman kick-backs for directing you to their players? That's closer to the scenario with Google.
If Google tried anything as blatantly coercive - retaliatory - as this they would open to themselve to uo lawsuits and likely criminal prosecution from every direction.
And BTW, for now on the results listing your competitors were not matched by using your trademark, but rather by data about what links people clicked on in the past after searching for a specific string."
Google would have a hard time explaining what links the searcher is likely to click on if a search for a trademarked product returns little more than prominently placed adds for its competitors.
Well, it's kind of hard to organize like this with the printed page. Too many combinations of "searches" for specific trade marked names. However, with dynamically generated content backed by a database it's a breeze.
I bet if the yellowpages had an online site, they'd do the exact same thing.....oh wait, they do: http://www.yellowpages.com/nationwide/name_search/wal-mart?search_mode=all&search_terms=wal+mart
Look at the right side of the page, a long list of "Related Businesses".
so, basically, what your saying is that google needs a "browse alphabetically" option. gotcha.
Google doesn't mean 'search the internet'.
Google means 'Use Google to search the internet'.
Hoover, in the UK, means 'vacuum'.
But even setting that aside for a minute, you're not making an equal comparison.
Going to Google and searching for Google is, at the start, a stupid example, because you're already there. You're USING the very product you're searching for! Try finding an ad for USA Today in the Wall Street Journal. Or see how many NBC television shows are advertised during the Super Bowl on Fox.
A better analogy would be I go to Best Buy, and I ask to look at a Kenmore. They say 'Hey, look at this Whirlpool instead!' Nothing wrong with that.
Google runs advertising. They're not going to run advertising for competitors. But we should expect that they are going to run advertising for other companies, and even expect that, if you pay them to, if you come to Google looking for a particular product, they might also refer you to a competing product. That's the whole point of advertising!
paintball
You can't take the sky from me...
You can't take the sky from me...
Seriously. When someone searches for Tesco, and they are looking for Tesco (a safe assumption), they'll click the SEARCH RESULT that matches, not the AD for Safeway. Tesco shouldn't want people clicking their ads (and if theirs is the only ad, it is easier to confuse with a search result) - because they are then paying Google for hits that they were already going to get.
n/t
The first link one the page (admittedly in the ad results) is "Equifax - Official Site" so I click on that only to get redirected to equifaxproducts.com.
If someone did that to my business, with an advertisement posing as my official website, only to get redirected to a competitor's, i'd be furious. This practice in no way benefits the customer.
Once again the real winners will be the lawyers - particularly any legal firm called "The Lawyers" who can also now apparently sue Google themselves for misuse of trademark.
I don't know about you guys but I'm going back to paper...
-- "Can't sleep, clowns will eat me!"