Court Says Keyword Advertising Isn't A Trademark Violation
from the good-answer dept
Every few months it seems like we have another lawsuit of this nature, and with different courts coming to totally different conclusions, it's likely that this is going to continue for some time. It's about whether or not it's legal for a company to buy text ads in Google when someone does a search on their competitor's name. As we've said repeatedly, there shouldn't be a trademark violation here. Trademark law is supposed to prevent consumer confusion, such as having someone think they're buying Coca-Cola, only to find out it's really Bob's Cola. Unfortunately, though, many companies seem to believe that trademark law means they have full ownership of their trademarked term, and no one else can use it for anything -- especially if it's a competitor. The courts have gone back and forth on this, with some of them seemingly confused by the real issues at stake. Eric Goldman has written an analysis of the latest such case, where it sounds like the court came to the right conclusions. They found that simply buying an ad based on a competitor's keyword doesn't constitute a trademark violation, as there's not likely to be any customer confusion (however, if the ad itself is written with the trademarked term, that might be a different story). This is the right reasoning, and it's good to see yet another court figure it out. There are still likely to be more suits along these lines, but the more reasonable decisions lawyers can point to, the better.
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Maybe we shouldn't trust the lawyers
Your argument implies that lawyers will distinguish between "reasonable" and "not reasonable". The real problem is that lawyers have not been able to make that distinction in the first place. If they could, these lawsuits would not exist.
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are they really this stupid?
Are the companies and lawyers involved in these cases really that stupid?
I mean, most of these cases involving patents, trademarks and copyrights, including every DMCA lawsuit, are almost always lacking logic. It's like every company and lawyer in the United States has lost their mind and there is no logic left in America.
Plus there just must be way too many lawyers, need to start shooting them.
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Actually, this is Exactly what Trademark is for
Searching for a certain trademarked product, getting advertisment for a product of same function and quality , by another firm .
Sure , 90% of the people could understand the difference because the search was targetted and they knew what they were looking for , buy 10% people could easily get the wrong impression .
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Re: Actually, this is Exactly what Trademark is fo
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Re: Re: Actually, this is Exactly what Trademark i
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Lawyers
I'm not sure how this squares with words like 'integrity' because you would think they know they aren't sending a valid notification which is backed by the law.
While I like to believe that most of them are hard working and honest I'm sure there are some slugs out there.
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contact the EFF
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what pisses me off
Searching for my company's URL in Google will show 3 or 4 ads, that all have a title of our URL.
Google should make it not allowed to have a URL in your title or ad if it's not the actual URL you're sending people to. It's not that hard to do.
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How can this not be trademark infringement?
How is this different?
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if it meas so, shopping just became a bit tougher. Googling for something is no different than going to the store, right. if you want jeans, you go to the jeans. if you want ralph lauren jeans, you go to that section of the jeans department. but while browsing, you see CK, levi, Lee, Wrangler, FuBu, South Pole, Jnco.....
same with all other items. simmilar items are grouped together. are you gonna tell me that if you wanted RL jeans, and saw Levis sitting next to them you'd get confused?
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Rules of the Road
Furthermore, if I lease a billboard near my competition's billboard, that isn't violating any trademarks. If I lease a billboard near their store, I still haven't violated any trademarks.
And, as justaguy has stated, putting a 'no name brand' item on a shelf near a 'name brand' doesn't violate Trademarks. (Though, some of those labels are pretty freakin' similar)
It seems to me that this would be a no brainer, but what do I know?
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sometimes trademarks are meant to confuse
example:
http://www.amazon.com/Nose-Book-Bright-Early-Books/dp/0394806239
Since trademarks are res-sellable, I don't see much consumer protection value to them. I say throw out trademark as an IP ownership issue. There's already laws to handle identity theft, or consumer fraud.
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In the UK you cannot create an advert that leverages a competing product or is derogatory towards that product.
You can't say "Buy Pepsi, it tastes a whole lot better than that minging CocaCola shit"
You can say "Buy Pepsi, it tastes better than other leading brands"
These rules may not be common law, but they are upheld by the Advertising Standards Association who have the power to fine advertisers and channels.
I think Google could do the sensible thing and not permit adverts to reference other trademarked brands they are in direct competition with, unless that term is generic.
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does that mean anything?
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Re:
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common place marks
Usually genericity is a defense to infringement. Sometimes courts will enjoin the use of a particular mark if it may help contribute to another mark's genericide, but genericide usually happens merely from the public's use of the mark.
Dilution is a completely separate deal.
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Mr. Humanist
That being said, I'm pretty sure that they're talking about when you google "Dell" on the side you might see an HP link. I don't think they actually mention the product you searched for. (e.g. It won't say "Buy HP, because Dell sucks." It'll say something like "HP.com, Buy online and save 5%-- Free Shipping!"
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Re: Mr. Humanist
And I see what you mean about them hooking into search keywords there... the actual ads themselves don't contain competing product references, got it, sorry I misunderstood.
So how does one company know that another used it's name as a keyword (by the way I'm thinking this would be wrong even more now) or not?
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Google
Maybe I should have sued them...
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Re: Google
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You mean like how Monster Cable thinks they completely and totally own the word "Monster", judging by the number of lawsuits they've initiated (Google: "Monster Cable" lawsuits.)
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Trademark Law
So when mr. little upstart high-tech company wants buy mr. big bad corporate america's trademark mark as a search term you don't think it's primary intent is to cause consumer confusion and get people who thought they were walking into your door walking into mine? Of course it is. If you think that's a good idea, be honest about it. Don't try to pretent your a trademark lawyer. Stick with your level of intellect and choose "I want to stick it the man" or "I want to bring down the capitalist pigs and set up a marxist paradise." It's the lawyers job to make whatever arguments serve his or her client's interest. On the message board, there really isn't any need to pretend . . .
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trademark question
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trademark law
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Stick to the basics
If it really was that big of a fuss to buy clicks with a competitor's brand name, then all you'd need to do is also offer that exact product in your store and then place your brand next to it, much cheaper and labeled as "the same thing." Since your product is not name brand and you're buying the clicks, you actually have some probability of the customer exiting the site right away when they find out.
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