As Google licences Overture's U.S. Patent No. 6,269,361 - the main Overture 'advertising in search results' technology patent - you've got to think that Google is now well and truly out on a limb on its own trying to fight this....
yeah, I'm almost surprised they settled. you'd think they'd want some sort of legal precident in their favor.
ads are still showing up if you plug in geico, by the way.
If ads continue to show up then I would infer that (one of) the objective of the litigation was to gain greater input into the advertising process. Perhaps what we now have is what unions call a pattern settlement.
Query: Could an aggressive trademark holder win the battle and lose the war?
Enforcing trademarks is going to be very labor intensive for PPC engines. I would assume they would have to work with companies to get appropriate documentation for the trademark, and then have an internal legal team review it for accuracy.
This is a huge loss to the PPC industry. I bet trademarked terms make up a SIGNIFICANT amount of revenue.
What about misspellings? "Geico" may be trademarked, but I bet "Gieco" isn't ;)
growingdigital, what makes you think Overture gave in? It looks to me like Geico gave up. Search on Overture for "geico" -- you'll find it full of listings.
Just for the sake of documentation in this thread-
We all probably know by now that Google didn't settle, and prevailed in a court of law. It is now cut-and-dried legal to use a competitor's trademark as a PPC keyword, no matter if you're Overture, Google or Bozo the Clown. This ruling applies to both the advertising provider and the advertiser.
A secondary issue, whether or not it is legal to actually use the competitor's brand name directly in the text of your ad, is still under consideration. Such use has always violated Google's TOS, and frankly ought to be illegal anyway imho.
If only it were ever so simple . . .
Rulings by a U.S. District court are appealable to the U.S. Court of Appeals.
Decisions of a 3 judge panel of the U.S. Court of Appeals for the District Court's 'circuit' are subject to review by a hearing en banc of all the judges sitting in that circuit.
Different Courts of Appeal can reach different conclusions on similar facts and the same law. One circuit's ruling does not bind another circuits.
When there's enough conflict between circuits, or any old time it pleases them (usually someone asks, no all appeals are 'of right') the U.S. Supreme Court can grant a writ of certiori to consider any issue the Court of Appeals addressed.
Now, when this process is over the legislature can step in and amend any law as they wish to address issues the U.S. Supreme Court may have raised in their opinion relating to the existing body of law.
What's the point, besides a little soapbox education? The point is that this issue may be around for awhile so be mindful in your planning of that fact.
Thus ends the day's lesson in law with the following observation: It ain't ever over when it comes to man made law and we, the members of the profession, appreciate that fact more than most. In fact, we appreciate it a lot.
|The point is that this issue may be around for awhile so be mindful in your planning of that fact. |
Awesome post, webwork. Thanks so much.
At the moment, I am flippantly giving a competing merchant's legal counsel a lot of grief. They're sending me cease-and-desist nastygrams about my use of their brand as an AdWords keyword, and I'm telling them (in a sufficiently businesslike fashion) to go pleasure themselves and rotate.
My question: pending the results of other litigation around this issue, appeals, Supreme Court decisions or even new legislation, could I be found retroactively liable?
LC - Talk to your lawyer. It's a complex question that deserves a fully explored answer.
luckychucky, I applaud you for standing up to this kind of intimidation; however, I hope you've evaluated the risks. The biggest risk to you is simply that your competitor will choose to litigate. You'll waste considerable time and expense in defending yourself.
What we've seen so far with the Geico case is that the courts are interpreting trademark law in such a way that it absolves the publisher from the issue of trademark infringement due to keyword targeting, and has gone on record saying that the practice is not inherently confusing to the consumer. However, that doesn't mean that should you go to trial that the judge will find that your ads were not confusing to the consumer.
You need to make a financial analysis of how much business you're getting from the ads versus the potential litigation costs.
The thing is, my ad never quotes the competitor's name anywhere, nor does my site. It simply says: 'Wholesale Widgets: Compare Prices and Quality', and shows up in AdWords when their brand name is searched on Google.
A federal judge has ruled that using a competitor's trademark as a keyword trigger for PPC ads is not a confusing misuse of the mark--that (stated in the language of trademark law) it is not likely to create the erroneous belief that my goods or services are authorized by, sponsored by, licensed by, or are in some way associated with their brand.
If I am not mistaken, this was the only possible legal vulnerability, and it has been eliminated in federal court (pending a theoretical appeal: ok).
Beyond this, legitimate comparison of products is solidly sanctioned by law, as is competitive advertising which does not impugn the reputation of another company, and which does not erroneously imply any confusing connection between the two companies as described above.
In other words, I believe it's in the bag. Now, being grateful for and seriously heeding your wise warning, could I survive defending a nuisance lawsuit, despite that it would be launched with no legal merit whatsoever from the getgo? Maybe, maybe not. Does such a prospect frighten me? Honestly: yes it does. But they could sue me for anything, anything at all just the same, any frivolous lawsuit whose sole aim is to drain my resources and sink my company, regardless of the fact that the case hasn't a shred of a legal leg to stand on... I might as well cower in fear and never challenge their market dominance by my mere existence then, play it safe and pray for their tolerant indulgence.
My ads and website do nothing but tout the quality and value of only my own products, period. No other brand is ever slighted, compared or even mentioned.
LuckyChucker-- for what it's worth;
If you intend to keep the keyword then hire an attorney to communicate with their lawyer. Opening communication without representation is foolish.
Your attorney will sound them out and get to their bottom line hopefully for under 4 billed hours. So for under $1,000 you will get an idea how hard they intend to fight. If your adversary is a Fortune 500 you are probably screwed unless your lawyer has case law in hand supporting you. If it is a mom and pop organization they may back off once they see you "may" be willing to fight. No one but lawyers like drawn out legal proceedings.