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Lawsuit Says Google's Sale of Keywords Is Illegal
Hugh Pickens writes "Google encourages advertisers to purchase other companies' trademarks as targeted search terms, and they're expanding the practice into 190 countries. When Audrey Spangenberg typed the name of her small software company into Google and saw the ads of competitors that had paid Google to display their marketing messages whenever someone searched for FirePond, a registered trademark, she was furious. This week, her company filed a class-action suit against Google in federal court, saying that Google had infringed on her company's trademark, and challenged Google's policies on behalf of all trademark owners in the state. Legal experts said it was the first class-action suit against Google over the issue. Google's acceptance of such competitive uses of trademarks has irked many other companies, including the likes of American Airlines and Geico, who have filed suits against Google and settled them. Many brand owners say the practice abuses their brands, confuses customers and increases their cost of doing business. 'I know of several companies spending millions of dollars a year in payments to Google to make sure that their company is the very first sponsored link' on searches for their own names, said Terrence Ross, a partner at Gibson Dunn, who represented American Airlines in its suit against Google. 'It certainly smacks of a protection racket,'"
Selling a T-Shirt with McDonalds name on it and selling advertising with McDonalds name on it.
When they are both done without permission is there a difference?
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Google, once again, is just using the basic idea of competition to drive a market. There is nothing to see here but some whiney person who is shocked to discovered the world does not revolve around them.
So basically, -1 troll/offtopic is really slashdots way of saying "I hate that you thought of something before me."
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They aren't messing with the -results- of the search. They are merely adding advertisements around the search. You'll still be able to find all the wacky Al Harrington products you want.
"If you make people think they're thinking, they'll love you; But if you really make them think, they'll hate you." - DM
I read all these analogies on what it is that Google did and here is my take:
For the purpose of this analogy imagine Google owns a telephone directory where your number gets listed for free for your business, but there is also a "Yellow Pages" section, where you can pay to have your business listed with number and some info - now imagine you only have your number listed in the free section, and a competitor of yours bought an add, put YOUR company name in it with THEIR number.
Google adwords is so powerful that it is in essence putting another IP address behind your company/domain name.
And in fact: Google "did" nothing - they offer a product that some competitor of this company has found a way to abuse.
That they allow such practices bears study though - I am unsure if the laws of the world has caught up with this business model though.
I would suggest that they notify the owner of the trademark name that someone is interested in buying an adword for that name, and to decide not to allow it, or maybe even get some of the addwords cash - it is their trademark after all. They could in essence cause the addword to be too expensive for the competitor to buy...
This is in fact similar to someone selling your personal details, google is selling other trademarks... hmm...
Seven Days with Ubuntu Unity
If you don't understand the language, maybe you aren't the target market.
In 1-800 Contacts v. WhenU, WhenU didn't run into trouble because their ads popped up in a separate window. That's not the case with Google (though they do clearly say "Sponsored Link").
A separate window from what, the content of the site in question? Google isn't displaying ads next to the content of the site. They are displaying ads next to a fair-use sized snippet of the content on the site, namely the search result. This very tiny piece of text is carefully constructed so as not to violate any legal guidelines by people much smarter than either one of us (probably) and is in any case a de facto allowable amount of content to display for the purpose of helping a search engine user decide whether that is the result they're looking for. When you click through the site, there are no more google ads.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Uh, the problem is systemic.
We like car examples here, so: your mechanic keeps breaking a different part when you come in, so that you have to pay him to fix it a few weeks from now. You catch him at it, and he fixes that broken part for free, and your car never again has mysterious parts broken.
However, he continues this practice with all his other customers.
The class action suit is to get him to stop breaking anyone's cars, not just your own.
I feel fantastic, and I'm still alive.
Why is there such a fuss about this? Apparently there would not be an issue if the names and trademarks in question were not already owned by other parties. the injured parties are suffering the stealing of their images and names for the profit and "fun" of persons who have not at least requested permission from the true owners, for their usage- who of you would not mind their trademarked names or images used for purposes other than the recognizability and profit of their brand and companies? seems kinda dumb to have an argument that says google is within their right to sell the usage of trademarks that were created paid for and owned by the companies they represent. Google does not own the names and trademarks of other companies they sell and should not allow anyone other than the rightful owners to use them- you know copyright and trademark infringement? DUH! The analogies are stupid! Do I have the right to used Sprint's trademark to further my business or to profit? How is it that so many are allowing the boundaries of ownership versus theft to become blurred? Simply put again, google does not own the properties they sell under the representation of advertising, and they should require that interested parties own the information publicized on their servers. I see a crippling or regulation of the keyword business coming. One good thing out of this argument may the that copyright laws are once again the debate to be resolved.
A separate window from what, the content of the site in question?
Yes.
This very tiny piece of text is carefully constructed so as not to violate any legal guidelines
The thing is, this is not settled, black-letter law. The best "guidelines" are probably case law, and if you looked at the 1-800 Contacts v. WhenU case, you'll notice that other courts have ruled in different directions.
by people much smarter than either one of us (probably) and is in any case a de facto allowable amount of content to display for the purpose of helping a search engine user decide whether that is the result they're looking for.
More informed about the relevant law? Sure. Smarter? Maybe, but not necessarily. You don't necessarily have to be "smart" to be a lawyer (though I'm sure Google's lawyers are better than the average one).
Furthermore, just because they're very smart doesn't mean other very smart people won't disagree with them, and convince a court that this behavior is infringing. Lots of large companies have good lawyers, and still have to deal with lawsuits. If it were just a matter of looking at the law and tailoring your action accordingly, things would be a lot less complex.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
The way I see it is that it's little different to a supermarket having competing brands of say, coffee in the same aisle, or shelf.
If Dowe Egberts want - or even pay to be next to Percol the fact that they SAY to the supermarket 'put us next to the Percol coffee' doesn't infringe Percol's trademark, and the resulting proximity doesn't create any confusion.
The search results are an on-the-fly aisle created on the use of a keyword. The keywords are sold simply to REFERENCE the competitor's product so that the 'aisle' can be created.
I don't think it's so much about trademark law or confusion as brand owners whining that a search for their trademark produces a list of results that is not exclusively about them! Oh my! Someone wanting to buy our trademarked product might be reminded that another competing product exists and might buy that instead!
In other words they're trying to stifle competition.
Corporation, n. An ingenious device for obtaining individual profit without individual responsibility. - Ambrose Bierce
"...depend on the exploitation of the competitor's trademark..."
Which is where the confusion lies. Trademark law doesn't exist to completely protect someone from using the trademark in any way, shape, or form.
Remember the Pepsi Challenge ads? It's perfectly legal to create an ad that says I'm as good as Coke, or better than Coke, or that more people prefer me to Coke. What I can't do, however, is create a competing product and slap a Coke label on it. IOW, I can't market my product under the same name, as that would lead to customer confusion: Which Coke is the real Coke?
And since that's ALL trademarks do, pretty much anything else falls under fair use.
Which brings us to Google. Do a search on Coke and Google doesn't display a natural search result that says "Coke" but takes you to Pepsi. That would be infringing. They may, however, display the natural search results AND display an ad that says, "Like Coke? Try Pepsi."
An action no more illegal than your local grocery store printing a Pepsi coupon when you buy a Coke.
Any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.
Who the fuck clicks on the advertisement links?