Google Keyword law suit -- you decide

[Rob Lister]

Airline Sues Google Over Keyword Ads (http://www.breitbart.com/article.php?id=D8R32BR02&show_article=1)

DALLAS (AP) - American Airlines is suing Google Inc. over the Internet company's sale of keywords ads for rivals triggered by its own trademarks.

American filed a lawsuit Thursday in U.S. District Court in Fort Worth seeking unspecified damages.

A Google visitor who enters certain words or phrases that American trademarked—for example, Aadvantage, the name of its frequent-flier program—will get links to American's Web site but also its rivals under "sponsored links"—targeted ads that appear alongside the regular search results.

Personally, I'm having a hard time siding with AA on this one. The precedent seems to be that not only do they own the use of their trademark, they own the response to any mention of it.

[Wolfman]

I've got mixed feelings on this one.

I am currently in the process of setting up a brand new business in which branding our corporate image, including our logo and certain key phrases, is crucial to our strategy. More than 60% of our total budget is just for marketing, in order to create a strong brand image.

Now, I know that once we're successful, others are going to copy us. And I don't mind competition.

But what I would mind would be if, after I've spent hundreds of thousands of dollars on branding, if some other company can pay a few hundred dollars, and when someone searches for trademarked words/phrases or copyrighted pictures, they immediately get referred to someone else's website.

Sure, they're going to get listed in the regular search rankings; but so far as I'm concerned, there should be a solid policy to prevent others from being able to pay for placement in search rankings based on my trademarks. And you can be darn sure that I'd do my best to fight any such abuse, including a lawsuit if necessary.

Consider it this way. I've spent hundreds of thousands of dollars to build up public awareness of a particular word or phrase, that is tied directly to my own business.

Along comes Google, and someone pays them money to get a sponsored link based on those same terms. Not only is this company getting the benefits of my hard work, but Google is essentially making money from selling them my trademarks! Talk about adding insult to injury...not only do they steal my trademark, that I've invested a significant amount of time and money on, but I don't even get any of the money from it. Google doesn't give me a share of their profits for selling rights to use that term in another company's search; and the other company doesn't give me a share of their profits for the increased business they receive as a result of using my trademark.

I can see why some might think that this is unreasonable on the part of American Airlines; but for me, I applaud their actions, and if I were in a similar situation, you can be sure I'd do the same thing.

[Rasmus]

But what I would mind would be if, after I've spent hundreds of thousands of dollars on branding, if some other company can pay a few hundred dollars, and when someone searches for trademarked words/phrases or copyrighted pictures, they immediately get referred to someone else's website.

I can see why you would mind. But that alone doesn't seem to be a very good reason to make it illegal.

ETA: As I write this, I am no longer on Google's payroll.

[Soapy Sam]

A view from the other side here.

I abhor any attempt to "privatise" language. In my view it should be flatly forbidden for anyone to copyright single words or short phrases. A poem, story or book is quite a different matter.

Wht if the next thing merican irlines decide is "theirs" is nything with letter ""?

[Rob Lister]

A view from the other side here.

I abhor any attempt to "privatise" language. In my view it should be flatly forbidden for anyone to copyright single words or short phrases. A poem, story or book is quite a different matter.

Wht if the next thing merican irlines decide is "theirs" is nything with letter ""?

Good observation but we're talking trademark, not copyright. If you tried to trademark, or use in commerce, the phrase "merican irlines" then AA could, and likely would, sue you. They would almost certainly win.

However, you could certainly trademark a phrase that was already in use by another company, so long as the product was substantially different and would not likely cause confusion to the consumer.

[Wolfman]

I can see why you would mind. But that alone doesn't seem to be a very good reason to make it illegal.
Because it is a product that I have spent significant money to develop. If it were a tangible product, I would have protection; but because it is intangible, suddenly I should have no protection?

A simple example: The McDonald's logo. Now, if another company attempts to use their logo (or even one that is similar to it), they are in breach of the law. I feel that the same protection should apply to unique words or phrases used by a specific company.
A view from the other side here.

I abhor any attempt to "privatise" language. In my view it should be flatly forbidden for anyone to copyright single words or short phrases. A poem, story or book is quite a different matter.

Wht if the next thing merican irlines decide is "theirs" is nything with letter ""?
While I understand your point, it is an argument from absurdity. Trademarking of individual, common words is not allowed; nor is trademarking of single letters (as you proposed above).

What we are discussing here is trademarking of new words, or unique phrases. Furthermore, protection of those trademarks generally applies only to where someone else uses it for their own commercial advantage. Thus, Nike's "Just Do It" campaign would allow them to sue another company that tried to use the same phrase in their advertisements or marketing; but it does not entitle them to stop anyone from saying that phrase, or to demand money from anyone who says it.

In other words, you suggest an "abuse" that is non-existent. Nobody is talking about stopping regular people from using trademarked words, expressions, etc. (American Airlines would never even think to sue us for using the word "AAdvantage" in this thread, for example, or to charge us for it). What we are discussing is specifically preventing one corporate entity from appropriating or using another corporate entitity's trademarks.

My new company's name is "Shou Ling Tong" (which means "Smart Hands"). I have specific images and words that I am going to brand as part of that business. I have no objection whatsoever to people using those words as much as they want, and in fact would love to see them become commonly used (it would mean my branding efforts were working). However, I would have a big objection to another business stealing those and using them to make their own profits.

If you object, that is fine; but please don't use straw men like "the corporations will steal our right to use the letter 'A', or nonsense like that. We are discussing purely the corporate use of such terms, where businesses derive distinct financial profit from the use of them.

Why should another company be able to derive financial profit from a product that is identifiably, legally my own?

[Katana]

It seems inevitable that doing a search on any airline-related, even company-specific information would pull up related companies, which obviously includes competitors.

But, Wolfman, it sounds like your issue is primarily with the fact that a search of something like AAdvantage would pull up the more prominent, sponsored links of competitors not just links to competitors, right?

I can see your point if I have that right.

I am wondering, though, how Google could prevent this from happening? I am no software expert, so maybe it's not that hard.

[Darat]

At the simplest level trademarking gains you protection from other people exploiting your trademark. To me this seems a simple case of Google exploiting a company's trademark.

[Wolfman]

It seems inevitable that doing a search on any airline-related, even company-specific information would pull up related companies, which obviously includes competitors.

But, Wolfman, it sounds like your issue is primarily with the fact that a search of something like AAdvantage would pull up the more prominent, sponsored links of competitors not just links to competitors, right?

I can see your point if I have that right.

I am wondering, though, how Google could prevent this from happening? I am no software expert, so maybe it's not that hard.
Katana,

You've pretty much got it. Let me illustrate using my own company.

My company's name is "Shou Ling Tong"; I am branding this not only as a company name, but also as "the Shou Ling Tong method". When other companies inevitably copy me, they can have similar programs, but they cannot call their company "Shou Ling Tong", nor can they use "the Shou Ling Tong method" in advertising their programs.

Now, let's go to sponsored links. What my company teaches, actually, is infant sign language (using sign language to communicate with babies before they learn to speak). If someone pays Google for sponsored links where, every time someone types generic words like "baby", "sign language", "infant", etc., then their company's name will show up in the sponsored links, I have no problem with that.

But if someone pays Google for sponsored links where, if someone types in "shou ling tong" or "shou ling tong method", then their company's name shows up in the sponsored links, then I have a very big problem with that. And the solution is simple; in regards to sponsored links, companies should not be able to use trademarked words or phrases that belong to another company, without that company's permission.

In all other areas of business, it is illegal for another company to use my company's trademarks for commercial purposes without my permission. But in this case, Google is using my trademark for commercial purposes (someone else is paying them for permission to use my trademark in searches, without either getting my permission, or rendering payment to me); and the other company is using my trademark for commercial purposes (to steer more clients to their own website, and thereby gain more clients), again without my permission, or without any financial compensation.

ETA: I am referring only to sponsored links, not to regular links.

[juniper_ann]

As far as I understand it's OK to use someone else's trademark in your advertising as long as you aren't trying to get people to confuse your product with theirs. For instance, it's perfectly acceptable to say "This dish washing detergent is better than Dawn" in your advertising (most advertisements actually say something like "better than the leading competitor," but that's because they don't want to give airtime to their competitors, not because it's illegal). It's not so acceptable to use the recognizable Dawn lettering and call your dish washing detergent Down.

I think that this is comparative shopping rather than trademark infringement. If you search for American Airlines, and Southwest pops up in the corner, you're not going to confuse Southwest with American Airlines.

[Rasmus]

I agree with Juniper. The competition here isn't "using" the trademark. It's not showing up in the ads, after all. If it did, you might have a case against that, and I would agree that they shouldn't be allowed.

But I see no reason to forbid advertising in an environment related to a trademarketed word or brand name, etc.

[Rasmus]

At the simplest level trademarking gains you protection from other people exploiting your trademark. To me this seems a simple case of Google exploiting a company's trademark.

If Goggle is not displaying the trademark in relation to the ads, then I fail to see how they are using it at all.

[Rob Lister]

I am wondering, though, how Google could prevent this from happening? I am no software expert, so maybe it's not that hard.

Currently, the sponsor picks the keywords that trigger their ad. google is hands off. for example, google the f word.

[Darat]

If Goggle is not displaying the trademark in relation to the ads, then I fail to see how they are using it at all.

It's part of what they use to serve up the adverts so they are using it and using it in a quite a commercial manner. However this is certainly not a clear-cut matter and that's why it's gone to court.

[Wolfman]

As far as I understand it's OK to use someone else's trademark in your advertising as long as you aren't trying to get people to confuse your product with theirs. For instance, it's perfectly acceptable to say "This dish washing detergent is better than Dawn" in your advertising (most advertisements actually say something like "better than the leading competitor," but that's because they don't want to give airtime to their competitors, not because it's illegal). It's not so acceptable to use the recognizable Dawn lettering and call your dish washing detergent Down.

I think that this is comparative shopping rather than trademark infringement. If you search for American Airlines, and Southwest pops up in the corner, you're not going to confuse Southwest with American Airlines.
I agree with Juniper. The competition here isn't "using" the trademark. It's not showing up in the ads, after all. If it did, you might have a case against that, and I would agree that they shouldn't be allowed.

But I see no reason to forbid advertising in an environment related to a trademarketed word or brand name, etc.
I'd argue that it is not the same thing.

Let me re-state my argument; my focus is primarily on Google's right (or lack thereof) to profit financially from the sale of trademarked words or phrases. If Google did not charge for this, and derived no commercial benefit from it, I would not like it, but I would argue it is legal. However, Google is profiting from selling the rights to use my company's name and other related trademarks without my permission.
If Goggle is not displaying the trademark in relation to the ads, then I fail to see how they are using it at all.
They are selling the use of a trademarked name. My company's name is "Shou Ling Tong". Google turns around and sells another company the right to use my company's name in searches linked to sponsored links.

Let me emphasize this. Google is making money from selling my company's name, and other trademarked words or phrases, that do not belong to Google. It doesn't matter if Google is displaying that name; they are selling it, and they are making a profit by doing so.

Let's make this more as plain as possible. One of my competitors wants to steal business from me (which is fine, that's a normal business practice, so long as it is done legally). They contact Google, and tell Google that they want to have sponsored links. The keywords they use for those sponsored links include the name of my company, "Shou Ling Tong", and the name of our program, "the Shou Ling Tong method". They are paying money to Google to use these search terms; therefore, Google is profiting from the sale of trademarked names and phrases that it has no rights to.

Consider this; sponsored ads are often sold through a 'bidding' process; for particular terms, whatever company pays the most money gets the rights to have top placement in sponsored ads when that term is searched for.

What does this mean? It means that A) if I want to use my own company's name in a sponsored ad, I have to bid against people who have no right to use that name, and B) I have pay more money to Google to use a name that is my legal property! This is, in my opinion, an absolutely ludicrous situation! It is my company's trademark, yet Google can auction it off to the highest bidder, and made financial profit from it, without ever needing permission from me, and without ever providing financial compensation.

Again -- in regular search results (not sponsored links), I believe it is totally legal and proper for other companies to use my company's name both in their links, and in their content, so long as such use does not contravene existing laws (ie. claiming to be part of my company, selling products with my company's name, or printing false information about my company). And I will (and do) do the same thing with my own website.

My problem is with Google making financial profit from effectively selling the rights to my company's name, and to trademarked words and phrases that belong to my company. Such activity should, in my opinion, be illegal. There's no argument that I can think of whereby Google, or any other company, has the right to sell or auction the use of my company's name (or any related trademarks) to any other individual or company.

[Darat]

I'd argue that it is not the same thing.

Let me re-state my argument; my focus is primarily on Google's right (or lack thereof) to profit financially from the sale of trademarked words or phrases. If Google did not charge for this, and derived no commercial benefit from it, I would not like it, but I would argue it is legal. However, Google is profiting from selling the rights to use my company's name and other related trademarks without my permission.

...snip...

The commercial aspect wouldn't enter into whether it is legal or not, it is whether they are using someone's trademark or not in a way that infringes on this trademark. I would suspect that part of the case against Google will be based on the idea that the Google's use of their trademark is using the "goodwill" associated with the trademark.

[Rob Lister]

hmmmm.....maybe I should reconsider....

The Lanham Act permits a non-owner of a registered trademark to make "fair use" or "nominative use" of a trademark under certain circumstances without obtaining permission from the mark's owner. The fair use and nominative use defenses are to help ensure that trademark owners do not prohibit the use of their marks when they are used for the purpose of description or identification. Fair use or nominative use may be recognized in those instances where a reader of a given work is clearly able to understand that the use of the trademark does not suggest sponsorship or association with the trademark owner's product or services and therefore is not being used in a manner to confuse the reader.

http://www.publaw.com/fairusetrade.html

one could argue that misdirection is the intended purpose. But I'm not sure google is the one they should be suing.

[Rasmus]

Wolfman,

I understand what you are saying. But I still don't see Google or their customers infringing on the trademarks. Google is selling adspace. It is not selling trademarked phrases. The companies are displaying ads. As long as these do not contain the trademarked words or phrases, the ads are quite obviously not using them.

That the ads show up in an environment related to the trademarked phrases seems to be a different thing to me.

Should a newspaper or magazine be allowed to sell adspace to company B next to an article about company A if A and B are competitors? I think that yes. And I think so regardless of how much company A invested in their trademarks or the product the article might be about, etc.

[Wolfman]

Rasmus,

There is a difference between selling ad space, and selling searchable words and phrases. A newspaper is just selling ad space. Google is doing more than selling ad space; it is selling searchable terms that are used to define that ad space.

I doubt that arguments from 'tangible' media such as newspapers can be compared with the internet, but here is the closest comparison that I can come up with:

A newspaper, on its front page, puts a notice that there is a special advertisement from Coca Cola on page 4. It then contacts all the cola companies, and tells them that whoever pays the most money for the ad space can have their ad placed there. So Mountain Dew ends up offering the most, and when people turn to page 4, they find an ad not for Coca Cola, but for Mountain Dew.

Now, the thing is, many of those people would not have turned to look at the ad for Mountain Dew if they had known that was what it was; but Coca Cola has a much bigger and more popular image, and it was because of that that people turned to that page. Mountain Dew was not paying just for the ad space; they were paying for the right to use Coca Cola's popularity.

Furthermore, that newspaper fraudulently used Coca Cola's name -- without their permission -- in order to sell that ad space (Mountain Dew paid more money for it because of the association with Coca Cola than they would have paid for just regular ad space).

This is, in my opinion, essentially the same as what Google is doing. The companies who are buying these premium listings will pay more money if they know that they can use competitors' names in their searches; and Google is charging them more money for the right to do so. They are not just buying ad space; they are buying the image that the other company has.

[tkingdoll]

To have a sponsored listing, one has to submit the keywords one wants attached to that listing.

Now, it seems clear to me that if a rival company uses your trademark in that list of words, it is trying to make money off the back of your trademark. There is no other reason for doing it. They are trying to nick your business by hijacking potential customers who are specifically looking for YOUR trademark, not theirs. Further, I would strongly expect any such move to be a deliberate attempt to confuse consumers about which company the trademark belongs.
And that's a no-no.

Unscrupulous companies used to put keywords and phrases in their metatags that had nowt to do with their company, but were known to be the most searched-for terms. For example 'Britney Spears'. This is now widely-frowned upon, and I believe that Google will block you from their listings if they discover you doing this.

Anyway, my prediction is that the courts will decide this is pretty straightforward 'trading off another company's name' stuff and find in favour of AA. Google is accepting money to show ads when potential customers search for a rival business or product.

Their own unofficial strapline is 'don't be evil', remember. Consumer confidence is a massive part of their business ethos, so even if they were doing this deliberately (and I suspect they were simply failing to check keywords rather than actively encouraging it), they will stop. It's a huge dent to their image if they don't, not to mention their sponsored links revenue.

[Rob Lister]

Rasmus,

Google is doing more than selling ad space; it is selling searchable terms that are used to define that ad space.



I disagree. It is NOT selling the term, but a tailored presentation associated with the term.

The sponsor can select any term it likes; the nature of it is not germane to the price.

[Rasmus]

Google is not saying that the ads that are being displayed are "for", let alone "about" whatever it is the user may have entered. There is no equivalent to the false claim that there would be an ad from such and such a company.

[Wolfman]

Rob,

That is not true, sorry. The "sponsored links" list only a few results; the companies that pay the most money for those specific search terms are the ones who get the best placement.

So, lets say that myself and ten other companies all use "Shou Ling Tong" in our list of searchable words for our sponsored links at Google; but only two of those companies will actually appear in the top listings. Who's ad will appear there? The company that paid the most money for that specific term.

If this were a system where everyone paid the same price, and submitted the same number of searchable terms, and had the same odds of placement in the featured ads, I'd probably agree with you. But that is not the case.

Do you really think that a cola company, for example, would pay the same price for a google ad that included the words "Coca Cola" in its searchable terms that they would pay for a google ad that did not include that? Of course not! They will pay significantly more money not just for the space, but for the right to use specific, trademarked terms in their searches.

[Rob Lister]

Rob,

That is not true, sorry. The "sponsored links" list only a few results; the companies that pay the most money for those specific search terms are the ones who get the best placement.



I stand corrected. That is an interesting twist. Google really is, for all practical purposes, selling the use of anothers' trademark in commerce.

Let me ask you this: prefaced on the theory that trademarks, patents and copyrights exist explicitly for the benefit of the public, and only implicitly for the benefit of the owner, is it in the public interest to disallow this use?

[Wolfman]

Google is not saying that the ads that are being displayed are "for", let alone "about" whatever it is the user may have entered. There is no equivalent to the false claim that there would be an ad from such and such a company.
Here is perhaps a better illustration comparing newspapers with Google.

Consider the classifieds section of a newspaper. It is split into different categories -- real estate, job wanted, job offered, personal ads, etc. When a person buys an ad, they buy an ad in the section most appropriate to their needs. Those ads are "searchable" according to basic, generic titles.

But what if, within those generic sections, they added corporate space? For example, within "Franchises for Sale", they added specific sections for "McDonald's", "KFC", etc. So now you can search not only by a generic category (Franchises for Sale), but also for specific companies that you are most interested in.

Now, McDonald's is by far one of the most popular and successful franchises; other companies know that if their ads are placed within the McDonald's section, many more people will look at them than if they are placed somewhere else. So they contact the newspaper, and offer to pay the newspaper if it will let them place their company's ad in the McDonald's section. Now, when people search for information on a McDonald's franchise, they find information on other, completely unrelated franchises.

Again, the newspaper is not just selling "advertising space"; they are selling advertising space that has a higher value because it is linked with a specific "search" term that is owned by another company.

Here is a pragmatic business fact, as a businessman myself. I have to decide where my advertising dollars are best spent. Google is one possibility, certainly.

Now, let us propose two different scenarios: in the first scenario, I can buy sponsored ads at Google that only contain generic search words, I'm not allowed to use any trademarked terms except those that belong to me, or that I have specific permission for. In the second scenario, I can buy sponsored ads at Google that can contain any search words, including trademarked terms used by my competitors.

Which of these two options will yield me more hits? Very obviously, the second option will get far more hits. So which of these two options am I willing to spend money for? Again, obviously, the second option. I am not paying only for the ad space; I am paying specifically for the increased traffic that I gain from using my competitors trademarks in my own searchable words.

To say that any business that does this is "only paying for the ad space" is incredibly naive; they know exactly what they are doing, and they are paying for that ad space specifically because they know that they can use their competitors trademarks, and gain more business by doing so.

Google is well aware of this; and I guarantee 100% that their ad revenue would decrease significantly if sponsored ads were prohibited from using trademarked terms owned by other companies. It would be exactly the same ad space as before; but would have far less value.

[Wolfman]

Let me ask you this: prefaced on the theory that trademarks, patents and copyrights exist explicitly for the benefit of the public, and only implicitly for the benefit of the owner, is it in the public interest to disallow this use?
I would not equate things like trademarks and copyrights. A copyright is pretty generic, that applies to pretty much any written materials that you create yourself. You don't even need to apply to have something copyrighted; it is considered legally your property by default. Trademarks are a very different beast. Every trademark must be registered and paid for, and are generally used only in a business context.

Copyrights exist for the benefit of the public, certainly; but I doubt I'd make that argument for trademarks. Trademarks are specifically for the protection of businesses, not of the public. Nike being able to trademark "Just Do It" has virtually nothing to do with public benefit; it has to do with preventing others from making financial profit from the use of a term that Nike has invested significant time and money into. Which is why if you, a member of the public, say "Just Do It" to some friends, you are not violating any trademark laws; but if you print t-shirts that say "Just Do It", and try to sell them, you are in violation of trademark laws.

So I'd say that the premise of your question is not accurate...trademark laws exist for the protection of business, not for the benefit of the public.

[Rasmus]

But what if, within those generic sections, they added corporate space? For example, within "Franchises for Sale", they added specific sections for "McDonald's", "KFC", etc. So now you can search not only by a generic category (Franchises for Sale), but also for specific companies that you are most interested in.

I think it is a significant difference that google doesn't have any pre-defined categories.

Now, McDonald's is by far one of the most popular and successful franchises; other companies know that if their ads are placed within the McDonald's section, many more people will look at them than if they are placed somewhere else. So they contact the newspaper, and offer to pay the newspaper if it will let them place their company's ad in the McDonald's section. Now, when people search for information on a McDonald's franchise, they find information on other, completely unrelated franchises.

See above.

Google isn't displaying anything under the category "ads about McDonalds", or even "related ads". They are displaying "sponsored links".

Again, the newspaper is not just selling "advertising space"; they are selling advertising space that has a higher value because it is linked with a specific "search" term that is owned by another company.

But here, the neswpaper is actively creating a limited set of categories. Google doesn't have categories, it has unlimited SERPS.

Here is a pragmatic business fact, as a businessman myself. I have to decide where my advertising dollars are best spent. Google is one possibility, certainly.

Now, let us propose two different scenarios: in the first scenario, I can buy sponsored ads at Google that only contain generic search words, I'm not allowed to use any trademarked terms except those that belong to me, or that I have specific permission for. In the second scenario, I can buy sponsored ads at Google that can contain any search words, including trademarked terms used by my competitors.

Which of these two options will yield me more hits? Very obviously, the second option will get far more hits.

Would it? If I am searching for McDonalds there is a relatively low chance I'll click on a link or ad for Burger King. But I guess that the ad displays is reason enough to argue the case ...

So which of these two options am I willing to spend money for? Again, obviously, the second option. I am not paying only for the ad space; I am paying specifically for the increased traffic that I gain from using my competitors trademarks in my own searchable words.

I am not at all denying that. I just don't agree that it should be illegal.

To say that any business that does this is "only paying for the ad space" is incredibly naive; they know exactly what they are doing, and they are paying for that ad space specifically because they know that they can use their competitors trademarks, and gain more business by doing so.

True. But still what Google actually sells is ad-space. Some more valuable than other, depending on circumstances. As long as the ad does not claim to be about [trademark by other company] I don't have a problem with it.

Google is well aware of this; and I guarantee 100% that their ad revenue would decrease significantly if sponsored ads were prohibited from using trademarked terms owned by other companies. It would be exactly the same ad space as before; but would have far less value.


And here is another important point: They would *not* sell the same ad space. They could no longer sell *any* ads on the pages that stem from searches that use (only) trademarked words.

How should they price the ads if they were selling them to the owner of the trademark? Obviously, the bidding process would be a bad idea if a copmpany should have the rifght to decide what appears on any given google page.

(For what it's worth: Google places all responsibility of ad text and key word selection on the advertisers, also I couldn't find any ads that would trigger a debate like ours right now.)

[Wolfman]

True. But still what Google actually sells is ad-space. Some more valuable than other, depending on circumstances. As long as the ad does not claim to be about [trademark by other company] I don't have a problem with it.
Sorry, but here is where our most critical disagreement is. You just gloss over why some ad spaces are more valuable than others as "depending on circumstances", but entirely ignore the fact that a significant part of those circumstances is the ability to use a trademarked search term.

Google is paid more money in advertising revenue because of the use of trademarked terms within searches; therefore, Google is making money based not just on the sale of ad space, but also on the specific sale of ad space that uses trademarked terms.

I don't know how many ways I can put this. Google is making a higher profit from the sale of trademarked names. I don't see how this can be denied. I spend time and money to make my company's name popular; then Google makes money from charging others to purchase ad spaces that use my trademark.

The more popular and recognizable my trademark is, the more profit Google will make from selling other companies the right to use that trademark in searches for their ads. Google is deriving direct financial profit from my company's success, without my permission, and without any compensation to me.
How should they price the ads if they were selling them to the owner of the trademark? Obviously, the bidding process would be a bad idea if a copmpany should have the rifght to decide what appears on any given google page.
How would they price the ads? Gee...I don't know...perhaps they'd price them the same way that all other ads in magazines, newspapers, etc. are priced? According to position, size, etc. This argument makes no sense to me whatsoever, the suggestion that pricing ads is somehow rendered impossible if they're not allowed to price them based on the use of trademarked terms.

And nowhere have I argued that any company should have the right to determine what appears on any given Google page; in fact, I've argued quite the opposite above, in regards to both non-sponsored ads, and in regards to sponsored ads that do not use trademarked terms in the searches.

I'm not saying that other ads should not be allowed to appear, or that the company should have the right to choose which ads do appear.

What I am saying is that Google is demonstrably profiting from sales that are based on the sale of trademarked terms; that a given company spends the time and the money to make that trademark valuable, and that Google then capitalizes on that trademark to their own profit, without permission from or compensation to the companies concerned.

It is not the placement of the ad, or the existence of the ad, to which I am objecting. It is Google's making a profit which is specifically based on the popularity of a given trademark.

It would be illegal in pretty much any other area of commerce for a company to sell a product where that product's value was based directly on the value of specific trademarks (without getting permission from the owners of those trademarks first).

Let's change this around a little; can you cite for me any other area of business where a company can sell a product -- tangible or intangible -- where the value of a product is higher if it is tied to a specific trademark, but where no permission is needed from the owner of that trademark to do so? Because that is exactly the situation with Google. They sell a product (ad space) that is significantly more valuable to advertisers if it can be linked to trademarked search terms.

If you can cite other areas in which such a practice would be legal, I would be more willing to concede your points; but if such a practice is not legal in any other area of business, I fail to see how it can be argued that it should be legal in this case.

[Rob Lister]

Copyrights exist for the benefit of the public, certainly; but I doubt I'd make that argument for trademarks. Trademarks are specifically for the protection of businesses, not of the public.

I stand corrected once again. A bit of researched confirmed that trademarks differ.

So far, you win.

[Wolfman]

I stand corrected once again. A bit of researched confirmed that trademarks differ.

So far, you win.
Aw, I'm far more interested in intelligent debate and exchange of opinions than in "winning". In some cases, I'll take the devil's advocate role and argue something I don't really believe, just to make people consider their own arguments more closely (and to have a spot of fun). In this case, it is not the destination that is important...it is the process of getting there :)

[Rob Lister]

Aw, I'm far more interested in intelligent debate and exchange of opinions than in "winning". In some cases, I'll take the devil's advocate role and argue something I don't really believe, just to make people consider their own arguments more closely (and to have a spot of fun). In this case, it is not the destination that is important...it is the process of getting there :)

Well, i was fairly well on the side of google coming in. Now, I'm not so sure. you debated well. How often is another poster's opinion swayed on these-here boards?

[The Atheist]

At the simplest level trademarking gains you protection from other people exploiting your trademark. To me this seems a simple case of Google exploiting a company's trademark.

Anyway, my prediction is that the courts will decide this is pretty straightforward 'trading off another company's name' stuff and find in favour of AA. Google is accepting money to show ads when potential customers search for a rival business or product.

Bingo!

I fail to see this as different from when KFC used to hand out Pepsi when people asked for "Coke". Looks black and white, good arguments all round.

[The Atheist]

Well, i was fairly well on the side of google coming in. Now, I'm not so sure. you debated well. How often is another poster's opinion swayed on these-here boards?

Never! It's specifically forbidden by Rule 13.




Although I'm going to seek to have Business relieved of respnsibility of that rule.

[webfusion]

I recently produced a video, labelled with a unique name which I coined, and it comes up as the only result when searching on Google.

("Ketchup Kascade") -- search Google Video

I didn't trademark that, mainly because I can't see any commercial advantage to doing so.

[Rasmus]

Sorry, but here is where our most critical disagreement is. You just gloss over why some ad spaces are more valuable than others as "depending on circumstances", but entirely ignore the fact that a significant part of those circumstances is the ability to use a trademarked search term.

Because we dissagree over what constitutes "using" a search term, as it relates to the law. The search temr that triggers an ad is not part of the ad.

Google is paid more money in advertising revenue because of the use of trademarked terms within searches; therefore, Google is making money based not just on the sale of ad space, but also on the specific sale of ad space that uses trademarked terms.

Again, the ad-space that is being sold doesn't itself use the trademarked words.

I don't know how many ways I can put this. Google is making a higher profit from the sale of trademarked names. I don't see how this can be denied.

I am not denying that are making money. I just don't see why anyone should have a right to interfere. Maybe I don't know enough about what means to own a word - but I think that it should not extend to what I do when I hear the word.

I spend time and money to make my company's name popular; then Google makes money from charging others to purchase ad spaces that use my trademark.

Do we at least agree that there is a difference between two kinds of "using" the trademark: a) I create an ad where your trademark appears in the actual ad and b) use of the trademarked term by the user triggers an ad void of the terms?

The more popular and recognizable my trademark is, the more profit Google will make from selling other companies the right to use that trademark in searches for their ads.

Yes. I still don't see how that it a kind of "using" the word that shouldn't be allowed - so long as neither the advwertiser nor google claims that the trademarked product is being advertised. And I simply don't see that happening.

Google is deriving direct financial profit from my company's success, without my permission, and without any compensation to me.

Yes. So?

I can open a fast foost restaurant next to a movie theatre and get most of my traffic from their customers. I don't have to compensate the theatre for their advertising and still profit from their success.

How would they price the ads? Gee...I don't know...perhaps they'd price them the same way that all other ads in magazines, newspapers, etc. are priced?

That ad space would no longer be comptetitive, though. So my question was: How should they decide on the price for ad space that they can either sell to one company - or not at all?

According to position, size, etc. This argument makes no sense to me whatsoever, the suggestion that pricing ads is somehow rendered impossible if they're not allowed to price them based on the use of trademarked terms.

That wasn't my point.

And nowhere have I argued that any company should have the right to determine what appears on any given Google page; in fact, I've argued quite the opposite above, in regards to both non-sponsored ads, and in regards to sponsored ads that do not use trademarked terms in the searches.

And what precisely are you arguing with regard to ads appearing after seartches that do use trademarked terms? You are saying that nobody but the trademark owner should be allowed to make use of that ad-space, right? So the trademark owener decides *if* ads are plaxced there, and what they will look like. All that google could do is to decide to not use advertising on those pages at all.

I'm not saying that other ads should not be allowed to appear, or that the company should have the right to choose which ads do appear.

Then I don't think I understand what you are saying.

What I am saying is that Google is demonstrably profiting from sales that are based on the sale of trademarked terms; that a given company spends the time and the money to make that trademark valuable, and that Google then capitalizes on that trademark to their own profit, without permission from or compensation to the companies concerned.

Yes. And all I am saying is that they should be free to do so, just as I should be free to run my business next to another buisness, even if we are competing and just as a newspaper should be allowed to print ads of company A next to articles about company B, even they are competitors.

It is not the placement of the ad, or the existence of the ad, to which I am objecting. It is Google's making a profit which is specifically based on the popularity of a given trademark.

And I don't see a problem with that at all. In fact, if there would be a problem, then no newspaper would ever be allowed to write about interesting products and sell any ad space next to it! After all, they would make a profit from using a sucessful product without compensation.

It would be illegal in pretty much any other area of commerce for a company to sell a product where that product's value was based directly on the value of specific trademarks (without getting permission from the owners of those trademarks first).

Any cases where "using" happens without actually "displaying" the trademark?

From what I understand- and I grant that may not be much - trademarks should prevent consumer confusion. So unless the ads in question would reasonably lead a user to assume he was ending up on the AA site, or any site offering AA flights, or being about AA in some way, I see no problem.

Oh: Found this:
http://www.techdirt.com/articles/20070108/002456.shtml

Not that it says anything new, I'm afraid.

[Darat]

...snip...

From what I understand- and I grant that may not be much - trademarks should prevent consumer confusion.

...snip...

No - that is just one of the tests that are often used to determine if someone else is exploiting your trademark or not.

...snip...
So unless the ads in question would reasonably lead a user to assume he was ending up on the AA site, or any site offering AA flights, or being about AA in some way, I see no problem.

Oh: Found this:
http://www.techdirt.com/articles/20070108/002456.shtml

Not that it says anything new, I'm afraid.



Trademarks exists (to put it very simply and in general terms) to prevent the exploitation of "good will" created by one company being used by another company without permission.

So if a company has expended resources to establish "Better, cleaner windows the Zygon way" as a trademark and as a company I use that (as Google is doing) without permission, in any way that effects the business of the trademark owner that is a breach of that trademark. It does not matter that the phrase "Better, cleaner windows the Zygon magic way" is never displayed by Google it is the fact that they are exploiting the trademark without permission that is the crux of the matter.

[JonnyFive]

My first impulse on this was "hell no," but upon further reflection I think they might have something to this. Although this sounds like something of a new case in trademark law, it does appear that the spirit of the keyword use is to redirect business using a phrase that is trademarked by the competitor. While this isn't quite as flagrant as, say, actually using that particular trademark to describe their own service, I do believe it is in violation of the spirit of trademark law, as I understand it.

That being said, it's been a couple years since I took a law class, and my understanding of trademark law is somewhat rough. Still, it seems that they might have a case... although they should probably sue the advertisers rather than Google, but whatever.

[Rob Lister]

Still, it seems that they might have a case... although they should probably sue the advertisers rather than Google, but whatever.

I thought that too until I realized that google is charging based on the popularity of the keyword (i.e. trademark). The more popular the mark, the more money you pay. You can verify this by going to the google adsense page and get costing for the term...xerox...for example.

[tkingdoll]

So if a company has expended resources to establish "Better, cleaner windows the Zygon way" as a trademark and as a company I use that (as Google is doing) without permission, in any way that effects the business of the trademark owner that is a breach of that trademark. It does not matter that the phrase "Better, cleaner windows the Zygon magic way" is never displayed by Google it is the fact that they are exploiting the trademark without permission that is the crux of the matter.

Exactly. It's the same as saying 'Better, cleaner windows the Zygon magic way. Buy Tryst Window Cleaner!'. Only in this case, Tryst has put Google between it and the consumer. It's not surprising that Zygon would be annoyed.

[JonnyFive]

I thought that too until I realized that google is charging based on the popularity of the keyword (i.e. trademark). The more popular the mark, the more money you pay. You can verify this by going to the google adsense page and get costing for the term...xerox...for example.

Well now, I didn't see that little bit of information. Given that, sounds like Google might have some liability in the violation of the trademark. Still, it appears to be an unprecedented case, so it'll be interesting to see how the court rules on it.

[Rob Lister]

Still, it seems that they might have a case... although they should probably sue the advertisers rather than Google, but whatever.

I thought that too until I realized that google is charging based on the popularity of the keyword (i.e. trademark). The more popular the mark, the more money you pay. You can verify this by going to the google adword page, keyword tool (https://adwords.google.com/select/KeywordToolExternal?defaultView=1) and get costing for the term...xerox...for example.