Finally: Clear Ruling That Realizes That Just Buying Ads On Trademarked Keywords Is Not Infringing
from the nice-to-see dept
For the better part of a decade, there have been a ton of lawsuits about keyword advertising, and whether or not it's a trademark violation to buy an advertisement on a competitor's trademark. All along, we've argued that this is not, at all, a trademark violation. The main purpose of trademark law, of course, is to prevent consumer confusion -- and advertising a competing product when people are looking for one brand is not a trademark violation. Just think of supermarkets where they have those little coupon dispensing machines that pop out competitor's coupons all the time. Keyword advertising is basically the same thing. Tragically, despite a large number of these cases, the courts have really skirted the issue. Some of the cases have blamed Google, but thankfully there have been a growing number of cases that have ruled Google clearly has no liability here as a third party. But the company buying the ads? Well, we've been waiting for a clear ruling... and we're getting closer.Eric Goldman points us to the ruling in the 9th Circuit appeals court in a case involving Network Automation Inc. and Advanced Systems Concepts Inc. Network bought some ads on Google and Bing based on searches for "ActiveBatch," which is one of Advanced System's products. The key question: is there a likelihood of confusion? We've argued no for years, and the court here seems to agree. It goes through all of the factors that the lower court should have considered in determining whether or not there was likely to be confusion, and seems to indicate that Google and Microsoft clearly marking things as ads reduces the likelihood of confusion.
Here, even if Network has not clearly identified itself in the text of its ads, Google and Bing have partitioned their search results pages so that the advertisements appear in separately labeled sections for "sponsored" links. The labeling and appearance of the advertisements as they appear on the results page includes more than the text of the advertisement, and must be considered as a whole.Even more importantly, the court finally seems to recognize that beyond just the limited list of "factors" previous courts have set out, it's important to actually look at the context and bigger picture. That's a key point that makes this ruling significant, and why many legal scholars are suggesting that this ruling is a defining ruling that will be cited and mentioned frequently in the future.
On top of this, hopefully it leads to an even clearer lower court ruling, but it seems clear that just buying an ad shouldn't be considered confusing. The text of the ad could make it confusing, but just buying the ad should not be.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: advertising, keywords, trademark
Reader Comments
Subscribe: RSS
View by: Time | Thread
Sadly, the "sponsored" links are at the very top of the results page and in blight yellow, saying "this is your result! click me!" to uninformed users.
And the worst part is that most ad buyers don't bother to identify themselves, meaning companies have to take out ads themselves to make sure they're the top standing in Google.
[ link to this | view in thread ]
[ link to this | view in thread ]
We don't need to look at no stinkin' "big picture" because we're talking about intellectual property.
It's the law!
[ link to this | view in thread ]
Look out Mike
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
I believe there have been studies done on this, and they have found that the vast, vast, vast majority of users recognize those are sponsored links. It may have been true years ago that people were confused, but no longer.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
Are those the same ones who toss my mis-addressed email back at me?
[ link to this | view in thread ]
Re:
And the worst part is that most ad buyers don't bother to identify themselves, meaning companies have to take out ads themselves to make sure they're the top standing in Google.
A person of average intellect will soon see that clicking the "Blight Yellow" link might or might not be in their interest. People are pretty smart and soon figure things out.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Rather, it's a ruling that the district court did not consider everything it should have, and remand for further proceedings.
While the ruling certainly scales back potential interpretations of earlier 9th Circuit case law, it is not at all what the headline claims it to be.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re:
The little "ads by google" box to the right there doesn't bother me at all. I guess the way they stick em right up there with my search results feels dishonest to me.
[ link to this | view in thread ]
Re: Re: Re: Re:
[ link to this | view in thread ]