The End Of Google’s Trademark Lawsuits
Google’s current policy is to allow Adwords advertisers to bid on trademarked terms, but not use the trademarked name in their ads.
American Blind & Wallpaper Company is suing because of Adwords advertisers were bidding on their trademarked name. I am not sure how this suit can pass? Google had stopped 2 previous suits and has started to create a Trademark tool. However, the judge is allowing this one to go through.
Google search engine is not only a resource for information, but an advertising medium. If Joe Schmo Blinds wants to bid on “American Blinds” name and puts in the ad, “Joe Schmo Blinds, Low Price Guarantee,” then so be it. I will guess American Blinds is advertising where other blind companies are as well. They can place ads on TV to compete against other blind companies or be set up right next to them in a store, but not online? Isn’t that part of what America is all about? Competition! If American Blinds is losing business over it, then they either need to improve service or lower prices. I wonder if American Blinds competes with other companies to sell their blinds?
As a matter of fact, I know they are. I searched for “Bali Blinds” and “National Blinds” which are trademarked names and guess who listed in Google Adwords Paid Search listings? American Blinds is #3 for "National Blinds" and #1 for "Bali Blinds."
So it is OK for them to do it, but not others? After finding this information, I am hoping American Blinds will have to drop the law suit.
On the flip side, what about the Adwords advertisers and Affiliate Marketers using adwords? Google has to protect them as well. If they lose this lawsuit, not only can they lose millions in lawsuit fee’s, but also millions in advertising dollars from the Adwords users. A great example is the scenario above. American Blinds may sell Bali blinds. If they win the law suit, no one will be able to bid on that trademarked name and it will not only hurt the advertisers, but Bali as well.
American Blind & Wallpaper Company is suing because of Adwords advertisers were bidding on their trademarked name. I am not sure how this suit can pass? Google had stopped 2 previous suits and has started to create a Trademark tool. However, the judge is allowing this one to go through.
Google search engine is not only a resource for information, but an advertising medium. If Joe Schmo Blinds wants to bid on “American Blinds” name and puts in the ad, “Joe Schmo Blinds, Low Price Guarantee,” then so be it. I will guess American Blinds is advertising where other blind companies are as well. They can place ads on TV to compete against other blind companies or be set up right next to them in a store, but not online? Isn’t that part of what America is all about? Competition! If American Blinds is losing business over it, then they either need to improve service or lower prices. I wonder if American Blinds competes with other companies to sell their blinds?
As a matter of fact, I know they are. I searched for “Bali Blinds” and “National Blinds” which are trademarked names and guess who listed in Google Adwords Paid Search listings? American Blinds is #3 for "National Blinds" and #1 for "Bali Blinds."
So it is OK for them to do it, but not others? After finding this information, I am hoping American Blinds will have to drop the law suit.
On the flip side, what about the Adwords advertisers and Affiliate Marketers using adwords? Google has to protect them as well. If they lose this lawsuit, not only can they lose millions in lawsuit fee’s, but also millions in advertising dollars from the Adwords users. A great example is the scenario above. American Blinds may sell Bali blinds. If they win the law suit, no one will be able to bid on that trademarked name and it will not only hurt the advertisers, but Bali as well.
Google has to fight!
6 Comments:
You ever try to get your company name blocked at Google? It isn't easy. The even let companies use our name in ads like:
How Does Lulu Compare?
Compare the top 4 book publishers
side by side, including royalties.
and says it isn't a violation. This company is a direct competitor of ours.
Dan,
I have dealt with several trademark issues between companies and the engines. Fill out the trademark paperwork to each engine.
Google Form
http://www.google.com/tm_complaint_adwords.html
Yahoo
http://searchmarketing.yahoo.com/legal/trademarks.php
MSN
http://help.live.com/Help.aspx?mark...markConcern.htm
If there is still and issue, Contact your rep about those and make sure you have all variations of your name and domain listed when you submit to the engines.
In most cases their automated trademark detection finds it, otherwise email your rep and they will get it removed.
I also want to add, it does not appear they have the term "blinds" on broad match. If you search for "best blinds" or "just blinds" american blinds ads do not appear.
Great catch - Mr. Kettle is indeed calling Mrs. Pot Black...
Regarding the issue of trademark and SEM; Successful marketplaces are built on the idea of more selection for the consumer being a good thing. This is why shopping malls work. This is why even though today's 20-somethings who don't usually read a daily newspaper will still pick one up when looking for a car – there is a great concentration of data located in one place.
The idea of a search engine user typing in "American Blinds" and then being presented with a number of paid AND non paid (organic) results is not unlike a Yellow Pages experience. If I looked up American Blinds in my Yellow Pages and I am then subjected to ads from 20 other blinds companies, can I sue the Yellow Pages publisher? Of course not.
Trademarks and Servicemarks are issued as a way to help consumers differentiate between products and services and for the provider of those products and services to protect against a competitor making use of their marks in a way that tricks or misleads a consumer into thinking they are buying that trademarked product.
That is not what is happening here.
A search term generates a real-time marketplace drawn into existence only at the very moment the consumer requests info on a certain topic. In essence the searcher asks Google to assemble a special section containing information on and RELATING TO American Blinds. In answer to that query, Google responds with info about that company, about its products and about possible competitors who offer similar products for the consumer's consideration. That sounds like a great deal for the consumer and not like something that should be banned.
Great catch - Mr. Kettle is indeed calling Mrs. Pot Black...
Regarding the issue of trademark and SEM; Successful marketplaces are built on the idea of more selection for the consumer being a good thing. This is why shopping malls work. This is why even though today's 20-somethings who don't usually read a daily newspaper will still pick one up when looking for a car – there is a great concentration of data located in one place.
The idea of a search engine user typing in "American Blinds" and then being presented with a number of paid AND non paid (organic) results is not unlike a Yellow Pages experience. If I looked up American Blinds in my Yellow Pages and I am then subjected to ads from 20 other blinds companies, can I sue the Yellow Pages publisher? Of course not.
Trademarks and Servicemarks are issued as a way to help consumers differentiate between products and services and for the provider of those products and services to protect against a competitor making use of their marks in a way that tricks or misleads a consumer into thinking they are buying that trademarked product.
That is not what is happening here.
A search term generates a real-time marketplace drawn into existence only at the very moment the consumer requests info on a certain topic. In essence the searcher asks Google to assemble a special section containing information on and RELATING TO American Blinds. In answer to that query, Google responds with info about that company, about its products and about possible competitors who offer similar products for the consumer's consideration. That sounds like a great deal for the consumer and not like something that should be banned.
I am writing to address the concerns and false perceptions stated on multiple forums, about Google's trademark policy.
Previously stated by jscroft:
"I could see preventing an advertiser from bidding on trademarked keywords. What I can't see, though, is forcing all advertisers to add all trademarked terms to their exclusion lists, which is the only thing that would prevent an ad from showing up on a search including a trademarked term. Whatever we may think about the advisability of that kind of stricture, it seems obvious that it would have to be imposed at the network level (i.e. by Google) than by the individual advertiser."
Response
Advertisers do not need to add trademarks to an exclusion list. For example, Google allows a trademark holder to implement Google's optional policy to prevent unauthorized parties from using trademarks in the title and copy of ads placed on a trademarked keyword bid.
What eventually will happen in the U.S. and Canada, which has already taken place in Europe, is that search engines will be required by law to completely prevent unauthorized parties from even placing ads on federally protected trademarks.
The real issue here is how "generic" can a phrase be to be allowed trademark status. Let's look at the company, Discount Tire. People don't normally search for "discount tire" unless they are looking for the company, Discount Tire. The generic phrase people tend to search for is "discount tires" with an 's.'
This is where things can get heated. How does the USPTO determine if a phrase is too generic to be trademarked?
Previously stated by iblaine:
"People have built businesses off the ability to abuse trademarks through adwords. Affiliate networks actively police this activity because affiliate networks are in direct contact with the trademark holder. Google is not in direct contact with the trademark holder but Google is a key part of the process by enabling it to exist and Google benefits when abuse occurs. At the very least, Google should be forced to have the highest standards when it comes to protecting trademark holders. I'm not sure if that's the case today."
Response
iblaine, actually Google is in direct contact with the trademark holder. However, it is up to the trademark holder to reach out to Google and implement Google's trademark policy. You nailed it when you stated "Google should be forced to have the highest standards when it comes to protecting trademark holders."
Google is illegaly abusing trademarks by using them for monetary gain in commerce, without consent from the holders of federally protected trademarks. The big blast of wind you felt on May 11th was Google's legal team sighing in defeat when Judge Fogel decided for the American Blinds case to go to a jury trial.
Previously stated by limoshawn:
"It seems to me that it would be almost impossible to keep the adwords program running if google was to lose this lawsuit. I wonder if the lawsuit is including the "organic results" as well. It may come to the point that every advertiser will have to be handpicked and every keyword and ad will have to be run through the legal department. It will be like buying a house, instead of title insurance, the advertiser will have to provide Google with "keyword trademark insurance" that will be purchased from a company that researches keywords to determine if they would be subject to a trademark violation."
Response
Limoshawn, if (when) Google loses this or another trademark lawsuit they will be fine. The majority of Adwords revenue comes from bids on generic phrases like "used cars" versus trademarks like "used Ford F150."
Incidentally, some companies decide not to implement the trademark policy because they want unrelated parties to advertise their wares, the choice should be left to the trademark holder. The auto industry is a good example, and Ford does not implement the trademark policy on the trademarked phrase "used Ford F150" because they want dealerships and aggregators to handle the used vehicle market.
However, If I was a corporate leader at Ford, I would have to think long and hard about allowing third parties to buy ads for the trademarked phrase "new Ford trucks." I would only want my brand messaging to engage the consumer and then build a brand relationship with them, and ultimately receive brand loyalty in return. Once engaged by corporate, the consumer would be serviced by the closest Ford dealership.
In response to your concern about organic results, Google does not receive compensation for these listings (commerce), therefore, it is a mute point--Google has however, proven that the search engine with the most relevant (best) results wins the majority of users.
Previously stated by Jim Bonfield:
"Regarding the issue of trademark and SEM; Successful marketplaces are built on the idea of more selection for the consumer being a good thing. This is why shopping malls work. This is why even though today's 20-somethings who don't usually read a daily newspaper will still pick one up when looking for a car – there is a great concentration of data located in one place.
The idea of a search engine user typing in "American Blinds" and then being presented with a number of paid AND non paid (organic) results is not unlike a Yellow Pages experience. If I looked up American Blinds in my Yellow Pages and I am then subjected to ads from 20 other blinds companies, can I sue the Yellow Pages publisher? Of course not.
Trademarks and Servicemarks are issued as a way to help consumers differentiate between products and services and for the provider of those products and services to protect against a competitor making use of their marks in a way that tricks or misleads a consumer into thinking they are buying that trademarked product.
That is not what is happening here.
A search term generates a real-time marketplace drawn into existence only at the very moment the consumer requests info on a certain topic. In essence the searcher asks Google to assemble a special section containing information on and RELATING TO American Blinds. In answer to that query, Google responds with info about that company, about its products and about possible competitors who offer similar products for the consumer's consideration. That sounds like a great deal for the consumer and not like something that should be banned."
Response
WOW. Jim, I am shocked to find out your company, Eyeballfarm.com, is a search engine marketing firm. Your website states that you have done internet marketing for Red Lobster, Petco, and Lowe’s. I would assume you to be an advocate of protecting your clients' brand assets, namely federally protected trademarks and other IP (intellectual property) holdings.
Your assertion that “the idea of a search engine user typing in "American Blinds" and then being presented with a number of paid AND non paid (organic) results is not unlike a Yellow Pages experience” is deeply flawed. The Yellow Pages do not return results for trademarks, they only publish results for generic, non-branded, categories—i.e., “blinds” or “window treatments.” What you really mean to say is that if you do a search on Google for a generic keyword like “blinds” should the user find paid ads for multiple and competing companies. Furthermore, if you searched for American Blinds in the White Pages (which are presented by brand) and were provided with the contact and product information for a different blind retailer, you would have a lawsuit to pursue.
In summary, the Yellow Pages (think paid search results) only display listings for generic categories, and the White Pages (think organic results) display listings for trademarks.
The bottom line is that brands go to great lengths and financial expenditures to build, nurture, and protect their trademarks, and that is exactly why Google is out of line here.
Tom Crandall is the CEO of Ayohwahr Interactive and author of the SEM Report Card blog.
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