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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,'"
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What google did is more akin to spraying a car with McDonalds analogies, then leaving the key in the ignition.
Next to an open wifi point.
What Google did is more like walking around in front of a Ford dealership while wearing a sandwich board advertising Chevrolet.
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."
First, your analogy does not apply here. And yes, if I sell T-shirts with a trademark on them without permission(McDonalds, Nike, NHL team names, whatever) then I am opening myself up to a very simple trademark case, one that I will lose badly (if I don't settle, which is the wise thing to do). I can mention trademark names as part of a discussion, but just sticking them on a T-shirt would be a problem.
Now if you have a T-shirt that says "McDonalds sucks" and/or a picture of Ronald being bitch-slapped by Hamburglar then that would be protected as free speech because it is parody. They might come after you to surpress it, but they likely won't win. But most people will settle anyways because they can't afford a legal siege, even if they are right.
“Common sense is not so common.” — Voltaire
Yeah, except you'd have to expand that to "Google owns the building the dealership is in".
People can't get around Google today. Or at least, nobody wants to. Google owns the search engine, google profits from the advertisers, google provides a place for people to questionably violate trademark for profit, google profits from this questionable behavior.
It'll be interesting to see what happens.
Trademark law is all about protecting consumers from being deceived about the source of goods/services.
In theory, yes, but in practice (as you probably know, since you know what initial interest confusion is), that's not the reality. IIRC, consumers don't even have standing to sue in a case of trademark infringement. Maybe they can sue for false advertising, but it's the trademark owner who has to bring the lawsuit for infringement.
Besides, with the expansion of trademark due to the notion of "dilution", and the licensing of trademarks for purposes other than source-identification (sponsorship, etc. - the stadium doesn't come from M&T Bank), it's hard to argue that trademark is all about protecting consumers, or even mostly about it anymore.
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"). WhenU was also not found to be "using" the trademark (despite including it in a database), because "use" of a trademark for the purpose of infringement has to be in commerce, and simply using the mark in a database didn't count as such.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
Placing a physical ad in proximity to a plot of land belonging to a competitor does not specifically depend on the exploitation of the competitor's trademark - a mark which they have to pay for and which supposedly affords them a degree of legal protection versus others exploiting it to their benefit.
Placing a web ad effectively "on" a competitor's trademark does - it could be argued (and seems likely to be the thrust of the lawsuit) - does mean that the ad's existence entirely depends on that trademark. The party selling the keyword is - again it could be argued - effectively selling the misuse of competitor's protected trademarks - definitely a no-no.
The fact that earlier one-to-one cases with Google vs large corporates resulted in settlements would seem to suggest to (IANAL) me that Google themselves may be concerned that there could be a case to answer here.
OMG!!! Ponies!!!
That's about the best analogy I've read so far. There's a car angle and everything.
Google is simply firing ads at users based on the search string they entered. If they wanted to give Fold ads to people who searched for 'peanut butter' that's their business.
How is Google supposed to know a word is violating someone's trademark? They're not all as obvious as Xerox, or IBM. Is Google expected to do a trademark search on every word and phrase their advertising customers want to purchase? That's going to get awfully expensive.
Or should the customer have to sign an agreement stating that none of their adsense words violate anyone's trademark anywhere, and provide some sort of notification/counter-notification system? I guess the customer should be doing a trademark search anyway, if they are going to compete in the international marketplace.
Why isn't this woman suing the company who purchased her name as an adsense word? If anyone has violated her trademark, it's them.
Here's another analogy, if I bought an ad in a national magazine advertising my company, who's name happens to be trademarked by another another company in the same industry that I may or may not have known about, is that company going to sue the magazine that ran the ad, or me? Can the magazine be responsible for doing a trademark search on every ad they run?
How about other IP laws? Is Google responsible because I bought an adsense word to advertise my new software that violates someone else's software patent? Or violates the GPL?
Is Google responsible because I advertised a site with a bunch of bit torrent trackers to illegal copies of Wolverine?
It will be interesting to see where this one goes.
I don't care why you're posting AC
But Google does accurately provide the link to the brand you asked for. It's almost invariably the top link of the actual search results, which are freely included and not interfered with by Adsense payments. In fact, for any moderately popular brand there will be pages upon pages filled entirely with various suppliers of precisely the trademarked brand name you searched for.
The search results - the 'true' product of your search, include only the keyword Armani. To me this is akin to being placed in the Armani section of the hypothetical store. Surrounding the search results, but separate from them, are the context adverts - these point to other brands you are likely to be interested in. Akin to flyers, or posters on the wall, in my opinion.
I think the key issue is that they do not redirect or alter the main body of your search. Only the data presented alongside, related to but not part of the search is for sale.