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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.
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