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.

Filed Under: advertising, keywords, trademark

Facebook's 3rd Biggest Advertiser Accused Of Being Affiliate Toolbar Scam; Facebook Says It's Never Heard Of The Company

from the just-like-the-old-days... dept

There have been numerous reports lately concerning just how much money Facebook is making on ads. That's part of the reason it was able to get that otherworldly $50 billion valuation from some. However, some are noticing something fishy in the Facebook ad business. After seeing an AdAge article mention in passing that the third largest advertiser on Facebook is not a household namebrand, but rather Make-My-Baby.com. Google's spam-catcher-in-chief Matt Cutts did some digging and quickly noticed that the site appears to be a sketchy toolbar installer that tries to switch you to using Bing, and then it gets an affiliate cut of any search ads you click on going forward. Cutts also points out that the URL to tell you how to uninstall the toolbar leads to a 404 page not found -- and many folks have had difficulty uninstalling the toolbar.

Marshall Kirkpatrick, over at ReadWriteWeb, digs in deeper and wonders if anyone at Facebook or Microsoft is actually minding the store. Even if they didn't directly know this was happening, if this is really the third largest advertiser on Facebook, both of those companies had to know something was up, just based on the numbers. A company like Facebook is intimately aware of its third biggest advertiser, and if the company is really driving that much traffic to Bing, then Microsoft would surely know about it as well.

Of course, this is where the story gets more bizarre. While Microsoft's response to this story was to cut off the company, Facebook's response was to claim that the company isn't an advertiser at all, let alone the third largest advertiser on the site. So how is it that reports suggest the company is the third largest advertiser, when Facebook claims they're not an advertiser at all? The company does have a slight hedge, by saying that "any affiliates that try to push people there we would shut down." So it's possible that it was hidden through some sort of affiliate setup before Facebook caught it -- but no one seems to be revealing any of the details.

Either way, all of this sounds quite reminiscent of the old adware days, where all sorts of sketchy companies would trick people into installing software to scrape up affiliate revenue. We hadn't seen much of that lately, as many of the old players eventually got wiped out, but it's hardly a surprise that similar schemes would quickly jump up in a Facebook world, whether or not it was officially through Facebook's advertising functionality.

Filed Under: advertising, affiliates, social networks, toolbars
Companies: facebook, microsoft

Odd That TV Networks Would Block Their Own Ads From Being Shown To Users Who Want To Watch

from the this-makes-very-little-sense dept

There have been all these stories lately about how the various TV networks are "blocking Google TV." But, that's getting the story backwards. What the networks are doing is not blocking Google TV -- which is basically just a browser -- but they're blocking their own, freely available content and advertisements from being accessible via a particular browser. It's difficult to see how this makes any sense at all. It's really a move from an industry that appears to (a) not fully understand Google TV (which could be Google's fault in how it was presented) and (b) be so hell-bent on "protecting" a part of its business, that it refuses to recognize the opportunities for embracing the internet (i.e., getting more people to see its advertisements). Of course, part of the "problem" is that the networks have been getting fat, happy and stupid on retransmission dollars, but that's a temporary blip, only possible due to the technology which hasn't totally broken down the walls yet. But that technology is coming one way or another (and it's not just Google). The networks would be smart to notice what happened to the music industry when it refused to work with the "legitimate" players early on: driving traffic and interest to underground players who had no interest whatsoever in working with them. It's a shame that the TV networks now appear to want to do the same exact thing.

Filed Under: advertising, blocking, google tv, tv
Companies: google

No, Triton Media's Settlement Does Not Mean Anything For Google

from the settlements-are-not-precedential dept

Earlier this year, we noted the decision by Disney and Warner Bros., to sue Triton Media, an advertising firm, for supposedly working with various sites that (the studios claimed) facilitated copyright infringement. A big part of the argument was that Triton was working specifically with such sites, knowing what they did and was therefore somehow liable. Yet, as we noted, this seemed like it was massively separate from the actual infringement. Many of the sites in question were merely links sites, so any actual infringement was happening with users on very different servers, so it seemed crazy to blame the company that was selling ads.

Yet, last month, when we wrote about how Triton decided to settle up for $400k, this hardly meant, as The Hollywood Reporter claimed, that this was a "win." There were many reasons why Triton might settle (including that it's cheaper than fighting), and such a settlement isn't precedential on anyone else. But (of course), in typically misleading fashion, the MPAA put out a press release claiming that it had "obtained a judgment," against Triton.

Now, here's what's sneaky. There are various ways to "settle" a case, and one is a "consent judgment." That's just a settlement worked out by the two parties, rather than the judge issuing an actual decision on the case. As part of that, there is a consent judgment issued by the court, but it's what the parties agreed upon, rather than what you normally think of as a court ruling, where the judge is deciding the result. Yet, the MPAA spun it as the studios winning a ruling where the judge had to weigh the merits of each side and came up with this result. That is incredibly misleading... but it seemed to have the desired effect.

For example, music industry lawyer Chris Castle, who never misses a chance to attack Google, no matter how weak or laughable (or wrong) the argument might be, posted to his blog about the decision, comparing it to Google, and suggesting that Google might be next. I left a comment for Castle noting that, as a lawyer, surely he was aware of what a consent judgment was, but (surprise, surprise) Castle refuses to post any comments from me (the same thing happened earlier this year when I repeatedly sent him comments noting blatant factual errors in posts). And, with that in the bag, Andrew Orlowski over at The Register decided to write his standard misleading drivel, claiming that the "ruling" sent a "chill through Google." Except, again, it's not actually a ruling in the traditional sense, but a settlement between the parties. Somehow, that doesn't make it into the article at all. And then others, who aren't as directly biased, picked up on it as well. Kit Eaton, over at Fast Company, picked up on Orlowski's article, and wrote an article suggesting "Google could be next."

Well, sure, Google "could" be next, but the scenarios are entirely different, and what Google does is quite different than Triton. But, more importantly, this "ruling" has no bearing on Google because it's not a precedential ruling, but just a settlement between the parties. And, it's unlikely that Google would just settle such a lawsuit, but would fight it. Of course, the studios and the MPAA know all of this. I'm not sure if Castle, Orlowski and Eaton know (or care) about all of this, but at least with Castle and Orlowski, it appears that they played this up for maximum FUD, as is their standard operating procedures.

Update: Apparently there are two different companies named Triton Media, and the one that wasn't sued doesn't like to be associated with the one that was sued (understandable). So the one that was sued and settled is Triton Media, out of Scottsdale, Arizona. Not Triton Media Group, which is based in Sherman Oaks, California.

Filed Under: advertising, liability
Companies: disney, google, mpaa, triton media, warner bros.

Nearly Every Company That Hates Google Piles On To Rosetta Stone Case

from the even-against-their-own-interests dept

For many, many years, we've covered the long list of cases involving some company suing Google because someone else bought an AdWords ad based on a keyword that the plaintiff had the trademark on. As we've discussed over and over and over again, these lawsuits make little sense for a couple of reasons. First, a trademark does not give you total control over the word, but only in cases where there is a likelihood of confusion (or dilution, though, that's a bit of a separate issue). Having a competitor advertise on your keywords is unlikely to confuse anyone. It's perfectly reasonable to try to put your ads where people are looking for your competitor's products. It's why when you go to the supermarket, they often will hand out coupons to you for competing products to what you've bought. That's not illegal, it's competition. Second, if there actually is any confusion in the ad, the liability would be on the advertiser, not on Google.

Thankfully, in most of these cases, the courts have recognized this and Google has prevailed. One high profile one, decided a few months back, was an attempt by language software firm, Rosetta Stone, to sue Google over ads on the site. Rosetta Stone failed badly, and while there were some quirky aspects to the ruling, it got the "big questions" right.

Rather than recognizing the nature of trademark law, Rosetta Stone is appealing, and the case is generating a lot of attention. Eric Goldman has a rundown of amici briefs supporting Rosetta Stone's position, and it's basically a "who's who" of companies who hate Google and are or were involved in other lawsuits against Google. You have Viacom and Blue's Destiny, who both sued (and lost to) Google on copyright issues. It seems they're hoping that if secondary liability in trademark can be applied to Google on this issue, perhaps they can use it to argue for more secondary liability in copyright law. That's a longshot, and it's a pretty childish reason to file an amicus brief here. There are some other companies that have sued over trademark keyword advertising in the past... And then there's the Association for Competitive Technology (ACT) and the Business Software Association (BSA), both of which have very strong ties to Microsoft. This seems really strange, because a loss for Google here would absolutely harm Microsoft. As Eric Goldman notes:

Could Microsoft be foolish enough to use this lawsuit as an opportunity to tweak its arch-enemy Google, even though an adverse ruling in this case would almost unquestionably be against Bing's best interests?

Even more bizarre is that eBay also has pretty strong ties to ACT, and eBay has been fighting against a long series of ridiculous secondary liability trademark claims from luxury goods makers (many of whom signed on to the exact same brief by ACT. It would appear that this brief actually appears to go against many of the best interests of ACT's largest members. A very strange move by ACT who should know better.

One other oddity: apparently Rosetta Stone's opening brief in the case was heavily redacted for no good reason, which seems problematic on such a high profile case that could impact a variety of technologies and services. Thankfully, Paul Levy saw this and questioned why there were so many redacted parts, and the lawyers have agreed to release an unredacted version of the brief.

Filed Under: advertising, keyword advertising, trademark
Companies: ebay, google, microsoft, rosetta stone, viacom

Content Is Advertising: Making Music Videos More Appealing And Interactive

from the choose-your-own-music-video dept

We often talk about the importance of recognizing that good content acts as advertising and that good advertising is no different than good content (such that people want to seek it out). And that's definitely true of the concept of music videos. They've always basically been "advertising" for the musician. These days, with YouTube, the music video has a new platform rather than MTV where music videos used to live. Lately, we've pointed out that some musicians are trying to get beyond the somewhat static limits of what a plain old "video in a box" can give you. For example, we discussed how the band Arcade Fire did an interactive video using HTML 5, that mashed up the actual video with the Google Street View of your childhood home.

The latest example we've seen is from singer Andy Grammer, who has just put out this "interactive" music video, which is basically a "choose your own adventure" version of a music video. As the music plays, you're given various choices as to what happens next, and the whole thing is incredibly seamless (though, warning: it takes freaking forever to load before you can start): Now there's nothing completely earth-shattering about this. The video is still a music video, but it does make the whole experience a bit cooler and it certainly gives people a reason to watch the video a few more times to see other variations (and there are a lot of variations), which might also help getting the song stuck in people's heads (in a good way, it's catchy). But it does show that it's good for artists (and their labels -- in this case, indie S-Curve Records) to think beyond the traditional box (quite literally) in ways that they interact with fans.

One of the complaints that some people make when we talk about the importance of connecting and interacting with fans is they think that all we're talking about is that musicians should hang out on Twitter all day. But nothing is further from the truth. For some musicians Twitter might be the best way to connect. For other musicians, putting together cool videos like this can help them connect. The point is to experiment and to figure out what works, rather than just doing the same old thing and expecting everyone to rush to you.

Separately, it's worth noting that the video itself was sponsored by Old Navy. We've seen brands doing this a lot more lately, such as State Farm's sponsorship of Ok Go's Rube Goldberg video. Once again, this works on the multiple levels of advertising and content meshing in a way that isn't intrusive or annoying, but which makes everyone better off. And, of course, that's not all either. To make this video work, S-Curve is using technology from a start-up called Interlude... which it has invested in as well. Without a doubt, this video is also advertising Interlude and its technology.

Filed Under: advertising, andy grammer, content, interactive videos
Companies: interlude, old navy, s-curve

The Atlantic Mocks Digg For Having BP As A Sponsor... In An Article Sponsored By Exxon

from the pot,-kettle dept

There was some attention last week, to the fact that Digg had apparently allowed BP to step in as a sponsor on the site -- and I do admit that, at a first pass, the image presented does not look good: The article uses this example to suggest just how desperate Digg has become in the wake of its redesign, which resulted in many users revolting or going elsewhere. However, Chas Edwards from Digg, actually makes a pretty good point in responding to the article, in noting, first that the BP catastrophe is horrifying:

The deaths, the images of oil-soaked birds, and the enormous environmental and economic tragedy they symbolize, are deeply painful. For people above a certain age, they likely trigger traumatic memories of another gigantic and horrifying oil spill, when the captain and crew of the Exxon Valdez tanker crashed in waters off Alaska and spilled millions of gallons of oil into the ocean.

However, he then notes that the very same Atlantic article which mocks Digg for taking money from BP... happens to have been sponsored by Exxon: Edwards points out that there are always issues in ad-supported media, but the mocking tone was unnecessary and somewhat hypocritical given The Atlantic's own sponsorship practices.

At times, we've had the same sort of debate here. Do we take advertising money from companies we disagree with over certain things? There's one argument that says that you should never agree to allow advertising from a company you disagree with. The flip-side might be that if a company you don't like wants to give it's money to you, perhaps you can put their money to much better use. In the end, I tend to view it in the same manner as I view censorship of unpopular speech: I'd rather let everything be out in the open, clearly stated, rather than trying to suppress views.

When I was in Germany recently, speaking at an event, a German guy in the audience got up and read aloud a comment on Techdirt that said less-than-nice things about Germans, and demanded to know why I had not deleted the comment (noting that, under German law, I was legally responsible for those comments). Beyond the ridiculousness of German law that puts the liability on third parties for others' speech, I noted that free speech means allowing free speech for all -- and if that includes ignorant speech, it's better to let that ignorance out into the open where it can be countered and responded to, rather than trying to hide it and delete it. I said that blocking or simply deleting such speech only reinforces the ideas of those who make such speech that they're saying something so "truthful" the world can't bear to hear it. I don't think that pushes the conversation forward.

Now, obviously, advertising is not the same kind of "speech" as discussed in the paragraph above, but there is something to be said for allowing companies to advertise in an open manner, and allowing the discussion to then occur, even about that advertising -- something Digg tends to encourage openly. It's been said that the best response to speech you don't like isn't censorship, but more speech -- and I would argue that applies to advertising as well. Now, I'm sure some will cynically say that, of course anyone who accepts advertising will want to accept whatever ads they can to make money. But I think that sites like Digg, which have been pretty careful not to go down the road of really annoying advertising, show that they won't just do anything for money.

Plenty of newspapers who covered the BP oil spill -- including the NY Times, the Washington Post and the Wall Street Journal -- all accepted advertising from BP in the wake of the spill. I didn't see any sanctimonious articles condemning any of them for doing so. It may be tempting, at a gut level, to suggest this is somehow "wrong," but I think I'd rather BP was out there trying to talk to people -- and letting the people talk back -- than being told it can't spend its money that way at all.

Filed Under: advertising, conflicts, ethics
Companies: bp, digg, exxonmobil, the atlantic

Sesame Street Recognizes That Advertising Is Content... On A Horse... Cow

from the i'm-on-a-horse dept

Earlier this year, we talked about the viral sensation of the Old Spice "I'm on a horse" ads, which have since morphed into various other successful campaigns: Not surprisingly, this has created a ton of parodies and spoofs... but what I wasn't expecting was that Sesame Street would do its own parody of a TV commercial: Now, it should be admitted that Sesame Street has been getting a bit edgier lately, with the whole controversy over Katy Perry's "appearance" with Elmo, and the whole "sexy" Sesame Street Halloween costume thing, but still I find this fascinating. While there are some who are worried about the role of advertising on children's TV, this seems to be an admission by Sesame Street in recognizing that ads are content too, and it can use that to its own advantage. Lots of people love the Old Spice ad, so why not play off of that to get some attention to its own work?

Filed Under: advertising, content, grover, old spice, sesame street

FCC Asked To Block New Cartoon Series... For The Children

from the gi-joe? dept

Benny6Toes alerts us to the news that a children's advocacy group is demanding that the FCC block a new cartoon show that uses a character from shoe company Skechers' advertisements as a part of the series, claiming that it would be the equivalent of a 30-minute commercial, which is against the requirements of the Children's Television Act. The group claims: "the show could pave the way for Ronald McDonald, Tony the Tiger and other iconic cartoon pitchmen to become stars of their own series."

Indeed, but as Benny notes: "After all, what are cartoons for Transformers, G.I. Joe (does that show my age?), Pokemon, or dozens of other kids shows for if not to sell related merchandise?" Saturday morning cartoons have been filled with half-hour long "advertisements" for merchandise for years. More to the point, Benny points out that isn't this really something for parents to decide, rather than the FCC:

But here's a better question: even if it is a 30 minute advertisement, should the FCC (or any government agency) be able to stop a show for that reason? Soap operas, though not targeted at children, were sponsored in whole by specific companies when they originally debuted on radio. That's why they're called, "soap operas."

Shouldn't the parents be able to say, "no," to their children?

Yes, people get annoyed at how commercial children's programming has become, but is that really the FCC's job to deal with it?

Filed Under: advertising, cartoons, children
Companies: fcc, skechers

District Court Smacks Down Tiffany (Yet Again) In Fight With eBay Over Counterfeit Items

from the will-tiffany-ever-learn? dept

Back in April, we noted the latest in the rather long saga of Tiffany's legal fight against eBay. Tiffany had sued eBay, claiming that the online auction site was legally responsible for policing the site for counterfeit Tiffany items that users were selling. Despite the lack of a clear safe harbor (a la the DMCA or the CDA), the appeals court agreed with the district court that eBay was not liable for the actions of third parties on its site. The one area where the appeals court sent the issue back to the lower court concerned eBay's own advertisements. eBay had apparently run some ads that mentioned the availability of Tiffany products on the site, and Tiffany claimed this made them liable. The court noted that it didn't appear this was false advertising (as there was nothing false in the ads), but that it might confuse or mislead users. It asked the lower court to look into that specific claim.

It didn't take all that long, as the lower court once again sided with eBay and said that eBay did nothing wrong here:

"Tiffany failed to establish that eBay intentionally set out to deceive the public, much less that eBay's conduct was of an egregious nature sufficient to create a presumption that consumers were being deceived,"

You can also read the full opinion thanks to Eric Goldman: The case isn't quite over yet, as Tiffany keeps appealing various aspects of it, but it certainly doesn't look good for Tiffany -- but does appear very good for anyone who believes in the principles of properly applying liability to those who did the actions, rather than the "easy target" third party (even in the absence of official safe harbors).

Filed Under: advertising, secondary liability, trademark
Companies: ebay, tiffany