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US Court Orders Company to Use Negative Keywords
A US court has ordered a firm to utilize negative adwords in their internet advertising. "Orion Bancorp took Orion Residential Finance (ORF) to court in Florida over ORF's use of the word 'Orion' in relation to financial services and products, arguing that it had used the term since 2002 and had held a trade mark for it since then. [...] The judge in the case went further, though, restraining ORF from 'purchasing or using any form of advertising including keywords or "adwords" in internet advertising containing any mark incorporating Plaintiff's Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term "Orion" as negative keywords or negative adwords in any internet advertising purchased or used.'"
Orion's overrated anyway. They should change their name to BoÃtes.
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This is unfortunate. The courts should have no jurisdiction over someone's stupidity. Using the name "Orion" in your company name is just asking for trouble. It's such a popular and recognizable term. OB and ORF shouldn't be surprised when someone steps on their toes once in awhile. OB acts like it invented the term despite the fact that it's been around for thousands of years.
And then with the courts stepping in and forcing ORF to not use the term in their advertising is playing favorites to OB. I can only imagine that this decision puts a serious dent in ORF's bottom line. If ORF was calling themselves "Kleenex" or some other brand name, that would be understandable, but "Orion?" Come on. OB shouldn't be crying foul when they should've known there would be confusion with the name "Orion." They need to grow up and play ball the old fashion way: may the best man win.
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Having made that finding the court is quite reasonably penalizing ORF. It is quite reasonable for an injunction to penalize ORF after they clearly took advantage of Orion's reputation.
And any company that does not show up in court when served with papers is likely to find that they end up saddled with onerous terms in any case.
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When I first read the post, for some reason I thought "negative keywords" meant they had to advertise under keywords that people wouldn't want, like "really bad financial service" or "shady loan company" or "housing lemons".
1) Company must now register and pay for the keywords "Dummy", "Poopiehead", "Fartsniffer", and "Boogerbrains"
or
2) Company must now register keywords that, when combined with their intended keywords, nullify each other out, like Semantic anti-matter.
or
3) Company may only use keywords that have a value less than zero.
"Negative Keywords" is a Google term. Excluded Keywords the Yahoo term. The judge specifically said "negative keywords or negative adwords". So does this reach across to OTHER search engines? I would hope so and that Google has a case on their hands if they had "Negative keywords" trademarked...
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I guess "Onion Residential Finance" would bring a tear.
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I think that the case should probably have been settled by whichever of the two originally defeated The Guardian. That's the only way I've ever known of to determine Orion ownership...
Too late ...
Sounds like the judge was completely clueless about the technologies in this case. I'm willing to be this will be appealed shortly, and the chances of it being overturned are probably pretty good.
These banks prolly ought not mess with movie folks over things like trademarks and copyrights...
This issue is a bit more complicated than you think.
If Orion is Greek Myth in origin, isn't it public domain?
:)
What next, Onion Bankcorp, because that is how I read the article the first time I read it.
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You can hire Maddox to be your spokesperson.
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I think this sets a bad precedent. The internet is a global mechanism, and I think this has the potential to start a land grab for "confusing" names. Just as an example, how many "Golden Dragon" Chinese restaraunts are there in the entire US? Or Golden Pheasants? Or Red Dragons? Or all three in the same city? Who sues to get a lock on "Golden" and who ensures that no one else anywhere can use "Dragon"?
And don't even get me started on AA Locksmiths, AAA Locksmiths, and AAAA Locksmiths...
Any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.
I mean, "apple" and "America" are pretty generic terms, but I suspect if I started a company called "Apple Microcomputers" and "Mortgage Bank of America" I'd get some phone calls real soon, and they wouldn't be from customers.
Ah well, they should just change their name to "YA Bankrupt Fly-By-Night Mortgage Broker" and be done with it.
Give a man a fish and you have fed him for today. Teach a man to fish, and he'll say "WHERE'S MY FISH, YOU IDIOT?"
I am curious. There are two Hershey companies. One sells chocolate the other ice cream. Oh, but the first's products are often used in ice cream as well.
I believe the ice cream company is actually the older of the two. So they should really take their court before this judge. They could be granted to actually force the famous Hershey chocolate to buy negative keywords.
***
The real question in this case, is whether the two companies founded independently or not. (ie: Both founded in separate regions and at one point did not compete directly with each other) If this is the case, then this judgment is bogus.
It's like having "Cold Springs Financial" & "Cold Springs Loans & Mortgages". If both companies arose out of two towns named Cold Springs. And yes, both are in the same business but until the internet or large growth didn't compete directly.
If such is the case, both companies should be allowed to use the term Orion. As it is NOT a created term.
Now, on the flip side if one company founded itself with said name deliberately so as to take advantage of confusion. Then that's a significant difference.
But why should they be barred from using a competitor's name in their advertising? A federal court has found that to be perfectly legal, so this is an unusal punishment.
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Clearly in this judge's spare time he decides copyright cases in favor of the RIAA.
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Thank you for the link. I just finished reading the prologue, and I like! I like! Now, if only I didn't have to work, so I could catch up on the year and a half of archives.
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You're thinking of copyright concepts. This is a trademark issue. Trademark has nothing to do with being creative or original -- it only has to do with distinctive identification of goods and/or services.
In short, there's no reason Orion couldn't be a protected mark. The court found that it is, and I see no particular reason to think they'd get this wrong. That being the case, telling them they can't advertise under that mark is pretty much normal operation of trademarks.
Requiring negative adwords seems a bit punitive ("since you've chosen to profit off confusion, you now must take extra care to eliminate confusion")... not sure if that's common, but what do you expect when you don't bother to show up?
It sounds like this ruling makes it illegal for the company to run advertisements on any web advertiser which doesn't incorporate the concept of a "negative" keyword. So now the space of advertisers available to the company is limited by a technical detail. This seems wrong.
IANAL
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"confusingly similar"? That's a pretty confusing term.
How dare they use my user id in this manner!
If this is a precedent, it could greatly affect Google and the like. Just image if every company could require their name or portions of it be negative keywords for their competitors... for free.
We would then get more company squatters forming companies just to grab the right to require negative keywords for their competitors. Kleenex might form 'Bathroom tissue, LLC', 'Toilet Paper, Inc.' to provide them more exclusive online marketing.
Our language is already becoming diluted with terms, imagine if every company had exclusive right to the group of sounds that make up the words in their name.
That being said, I'm still not in favor of what Google's advertising profit model has become.
I think this kind of punishment is unconstitutional as it prevents equal opportunity. People can be banned from doing the wrong thing, but forcing them to hurt themselves is barbaric.
The negative keywords will combine with the positive keywords and KABLAM!!!!! Goddamn hippies messing with forces of which they know nothing!
I wonder if this has anything to do with the Orion spacecraft, currently in development to replace the Space Shuttles. Maybe the state is keeping those adwords to themselves for promotion of the new vehicles, to build public interest in the near future.
The reason this injunction is so bad is that it explicitly forbids comparative advertising. You know how in the grocery store they shelve the Campbell's soup next to the store's off-brand label? That's similar to buying the trademarks of your competitors as keywords. That way, both products come up in the search results and the consumer gets to investigate both and determine which she would like to buy. That benefits the market by giving consumers more information, exactly the kind of thing that trademark law should promote.
I realize that the First Amendment doesn't protect commercial speech to the extent that it protects other kinds of speech, but this seems exactly like the kind of commercial speech the First Amendment should protect. You can't sell an off-brand product if you are not allowed to say, "We're cheaper than the brand name!"
I read through the postings here and still cannot figure out what a negative keyword might be...
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This post ignores trademark law and precedent. There wasn't any confusion until ORF intentionally tried to cause confusion by choosing the name "Orion xxx". They could have picked any other name in the world, and if they had hired a decent lawyer they would have.
If I start "Skiff Bank" then build it up, then several years later someone starts "Skiff Financial Services" then absolutely that's a trademark infringement. Stop stealing my name, SFS, and go pick your own name instead of trying to confuse the public into walking into your store because the public has a good impression of my name.
That would be like onionsux, onionfskr, or 2girls1onion , right?
If the 2 companies were splitting up a financial pie that didn't involve intruding into each other's customer space, they could have easily worked out an agreement, maybe equal advertising space on each other's sites, shared advertising costs, thus profiting both companies and strengthening each other's brand name. Instead one company benefits at the expense of the other, with the side effect of becoming notorious for the setting of bad legal precedence.
Starbucks, Harbuckle of Breath.
There are lots of companies named Orion.
Here's one that sells level control instruments.
Otherwise you'll flip the bit and end up having to pay a shit-ton.
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