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|Google Wins Geico Lawsuit|
|ALEXANDRIA, Va. (AP) - Google Inc. won a major legal victory Wednesday when a federal judge said the search engine could continue to sell ads triggered by searches using trademarked company names. |
Brinkema said the case would continue to move forward on one remaining issue, whether ads that pop up and actually use Geico in their text violate trademark law. Google contends that its policies expressly prohibit advertisers from using trademark names in the text of their ads. The search engine says it does its best to prevent ads that violate the policy from sneaking in, and that the advertisers would be liable for any trademark violation, not Google.
The issue is not about insurance. That is a digression from the discussion. The issue is about trademarks and the shady practice of using others hard-earned efforts (e.g., of a trademark) to build the non-trademark-owner's own profits without work. Real competitors with real value-worth products provide real goods or services that stand on their own without using such lazy shady practices.
Well, it was a small diversion, but you can't attack other people's business practices if they are legal - and US Court system chose to call it legal.
But let's talk about "real products that stand on their own". What's the most famous ad campaign that made Geico?
That's right, "Save 15% or more on car insurance"
It doesn't tell that Geico's product is great, it stands on its own or whatnot. ALL IT DOES IS ATTACKS SOMEONE ELSE'S PRODUCT PRICE. Darn, if it is not ironic! :)
I still don't understand the sensitivity of this issue, and everybody's strong defense of Geico under these circumstances. I have a trademarked business name, and will do fight anybody to the death ...err...courtroom to protect it. However, I bid on other people's trademarked names too, and I know some bid on mine as well. Its all part of business and is fair game.
Now, if any of these bidders were to try to pass themselves off as being me, or an agent for me, or stole my trademark, I wouldn't hesitate to slap them with a lawsuit.
You can take any issue too far and too seriously. What if the record companies, having gotten rid of Napster (rightfully so), decided that radio stations needed to pay them royalties every time they played one of their songs? Or if merely mentioning a trademarked name in public brought on a lawsuit if you didn't get the owner's permission first?
Is that what some people want to see as the next step?
I think Geico was dreaming. I mean, a search for Geico and the only AdWords ad that shows is Geico? I'd love to not have any competitors in business too.
Even more laughable is the fact that if I knew what I was searching for - In this instance, Geico - why would I need to look it up in a search engine?
|I still don't understand the sensitivity of this issue |
There's an old saying that where you stand on an issue depends on where you sit. I can think of several key places people can sit on this issue.
If you have a well-known brand, then it's to your advantage to side with Geico, as eliminating these ads eliminates a competitive threat.
If you compete agaist a well-known brand and have a good unique selling proposition versus that brand, then it's to your advantage to side with Google because this gives you more opportunities to present those advantages to consumers.
If you are a publisher, then it's to your advantage to side with Google, as it's to your advantage to be able to run more ads.
If you are a reseller, then it's to your advantage to side with Google so that you can run ads for the brands you sell.
If you're a pure SEO, it's to your advantage to side with Geico because it's easy to optimize for brand names and you don't want to lose that traffic.
If you're a pure PPC SEM, it's to your advantage to side with Google, because it gives you slightly bigger campaigns to manage.
Lastly, if you're a consumer, it's to your advantage to side with Google, because the ads give you relevant, timely information about purchase options.
they didnt allow me to bid on a lot a TM keywords... and now this ... i dont know what to make of it. i'll try again now :D
All posters should memorize TOS # 12, 14 & 19 [webmasterworld.com].
Thanks for your cooperation.
|searchers who click on these ads to keep them above Adwords' CTR minimums, which is an objective measure of the ads' relevance to the searchers. |
Not true. That is now one of the biggest LIES G$ has now advanced. All that any CTR of the irrelevant ads proves is that DECEIVING the user was "successful." It does NOT prove the ad was RELEVANT. It only shows that deception was.
BookMarcAL, trademark law differs by country. Adwords tries to abide by the trademark laws of the country to which the advertising is being delivered.
|What if the record companies, having gotten rid of Napster (rightfully so), decided that radio stations needed to pay them royalties every time they played one of their songs? |
They already do! ASCAP has been doing that for musical artists for decades, long before the internet and Napster.
Thank you for further PROVING the point!
|They already do! ASCAP has been doing that for musical artists for decades, long before the internet and Napster. |
Thank you for further PROVING the point!
Well, I have to concede that point. I looked up ASCAP and went to their web site, and yeah, they do charge radio stations royalties.
I guess you learn something new every day.
Heh, I was going to point out the "death of the Internet radio station" until I got here and saw the ASCAP reference, I missed that one - good catch MultiMan!
Cline, your perspective is well-thought and insightful.
|Lastly, if you're a consumer, it's to your advantage to side with Google, because the ads give you relevant, timely information about purchase options. |
I recount an analogy that convinced me to sit on the Geico side of your last analysis. Say you call telephone directory assistance (do they still exist?). "Can you give me the number of Pizza Seller #1?" you ask. "Certainly," says the operator, and gives you the number. He then continues: "May I also give you the number for Pizza Seller #2? They make good pizza."
I would prefer that the operator not offer me that second option.
I think I'm going to trademark the term "Ahh Chooo" and sue everybody who uses it in public without permission. I'll make a fortune during flu season.
Calling information for a direct answer about 'pizza seller #1's phone number is much different than searching 'pizza seller #1' for general information on the internet - because intent can be much broader. The comparison is invalid.
[edited by: PPCBidder at 12:06 am (utc) on Dec. 18, 2004]
|If you're a pure SEO, it's to your advantage to side with Geico because it's easy to optimize for brand names and you don't want to lose that traffic. |
Cline, You're generally spot on, except for this one? The only way you could optimize for the 'Geico' keyword is to use it repeatedly in your site text and backlinks. And that, I would think, would be really asking for trouble. You could repeatedly claim to have a better product or service than Geico, but you damn well better be prepared to defend the veracity of every single assertion and every single placement of the 'Geico' trademark on your site, and neither imply any affiliation with their mark, nor defame their mark in any way, or you'll be a sitting duck.
|And remember, I'm not necessarily opposed to competitor results being returned at all...I'm opposed to giving companies the right to buy their way to the top of a search for another company's name and calling that the most "relevant" result. |
Cyhcto, no one is buying their way to the top of a search. They're buying the biggest/most prominent ads against their competitors, which in Google happen to be on the page margins. That's always been the norm in print, radio and TV. And even if one could simply buy his way to the top, I can't imagine anyone suing in a court of law over unfair serp results; at least as far as I know it hasn't happened yet. If a company doesn't show up #1 in the organic serps for its own trademark, I would blame the company's own ineptitude or lack of effort. If they're being one-upped by deeper-pocketed competitors in the paid ads, well...
welcome to the cruel, real world of business.
dbowers, thanks for the compliment.
|Cline, your perspective is well-thought and insightful. |
I've thought about this long and hard as this is an important issue for my clients.
In the directory assistance analogy, you're paying for directory assistance. You're getting Google results for free. Google is being paid by adverisers. That makes it rather different, because you're paying for a service.
A closer analogy would be going into a store and asking for a Brand X widget. The salesperson says, "we have them. Would you also like to look at the Brand Y widgets? They have some nice features you might prefer over the Brand X widgets."
luckychucky, sorry, I wasn't clear enough about the perspective of a pure SEO. In my statement I has assumed that the SEO was being done on behalf of the brand name, not the competition. Unfortunately, I didn't express that in my statement.
I agree with you. Doing SEO on the brand name of a competitor would be a horrific exercise. Although there are a few possible ethical ways in which it could be done, most of the available, effective methods would require some form of deception.
On Cyhcto's issue of "buying their way to the top of a search", it should be made clear here that we're talking about the regular PPC ads -- the ones that say "Sponsored Links". We're not talking about paid placement, where the advertiser gets to have their listing inserted in the regular search listings. There would indeed be serious ethical issues with this type of placement.
[edited by: cline at 12:22 am (utc) on Dec. 18, 2004]
Again: Google is not a telephone directory or phone operator.
Google is a search engine.
On the Internet.
Google is more like a hotel concierge. You ask the concierge: 'Is there a Ford dealership in the area?' He replies: Why, yes there is, and it's a fine one. Here is our best information on local Ford dealerships- and as an added service to you, completely free of charge, here is a list of several other automobile dealerships in the area, including these paid advertisements by dealers of other brands who feel they have something of interest you may wish to consider, possibly a better automotive product at a better price--and all of this information we provide to you free of charge, because our concierge services are sponsored in full by paid advertising'.
<Searching just for
is just like searching for
+Geico -Pemco -SafeCo -"State Farm" -"Mutual Of Omaha" -"mutual funds" -"First National Bank" -"river banks" -"River Phoenix" -viagra -gesundheit>
You think so? You should try it, and you'll notice that you get completely different results. Searching for "Geico" is not at all like doing the second search that you mention, nor should it be. Searching for "Geico" just shows pages that have the word "Geico" in them, or in the anchor text of links pointing to them. But the latter search narrows it down even further by excluding other words. The way you describe a search for "Geico" would mean that the only relevent result would be a single page with nothing but the word "Geico" on it, and I can't imagine that you could have possibly meant that.
In most cases if I am specifically looking for Geico and not a generic insurance company, then I'm going to look in a directory, not a search engine.
But let's say that I do use a search engine, and I search for Geico, and the first thing I happen to see is an advertisement on the right-hand side (and let's just say that the ad is not Geico), and I click on it hoping to go to Geico's website. Even though the ad didn't say that, I assumed it because it was the first thing that came up. So I click on the ad and land on a page that obviously does not belong to Geico. I have two choices.. I can hit the back button (which is what most people would do if they were set on buying from Geico), or I could read on and perhaps find a better deal.
In the former case, the advertiser would spend a lot of money for very little conversions, so it's likely that they either have a really good service that is worth this expense, or they don't and won't advertise using their competitor's keyword as a trigger because it's too costly.
In the latter case, I've found myself a good deal. It's very unlikely that the average person would be so stupid as to think they actually landed on Geico's site and go through the entire process of purchasing insurance while being ignorant to this the entire time. And remember we're not talking about people mimicking Geico by creating identically-looking sites and logos, we're just talking about their ads being triggered by that term.
So as a consumer, at no point could I possibly lose with this deal, and I stand a small chance of gaining something. As Geico, I wouldn't be concerned about this.. who, as their competitor, is going to use the word "Geico" as a trigger and really think they can make a good ROI? That is, unless they have a much better product/service than Geico.. well then they certainly deserve to make more money as that product/service will attract the most consumers.
|A search engine and any purportedly RELEVANT ads in it should only be about what the user searched for, not additional off-topic additional "suggestions." |
eh? Good advertising is not about offering only what a user is looking for. It is about offering related products and services that may interest the user.
Amazon.com does a great example of this. When you are looking at a product they also display links to other products you may find interesting. Sometimes these are competing products offered at a better price, and sometimes they are different products that would compliment the one being viewed. Do you consider this to be trademark infringement as well?
|If G$ wants to make a massive press conference before all the world to openly admit they want their users to know that G$ purposely adds and accepts IRRELEVANT ads, that would be different -- and they would likely lose users from doing that, which they know. |
But since G$ advances the LIE that they are supposedly only having RELEVANT ads, then it is a misrepresentation to the public and deceives their users.
There are no lies and there is no deception. The ads are related to the word searched. Relevant means "Relevant means "having a bearing on or connection with the matter at hand." Obviously other insurance companies have a connection with Geico.
And, as I have pointed out before, the search box on Google has no magical properties. The words typed into the box don't have to relate in any way to the results page. Obviously Google wants them to, because that is what makes a good search engine. But they could just as well show random gobledy gook for all they care.
To further dispute your 'relevancy' issue, the ads are displayed under the term "Sponsored Links". It does not say "sites matching your search term exactly". For that matter, it doesn't even say "relevant links". It's no different than any company that sells banner ads or links on their site. These don't necessarily have to be related to the subject of the page being viewed.
|There are no lies and there is no deception. The ads are related to the word searched. Relevant means "Relevant means "having a bearing on or connection with the matter at hand." Obviously other insurance companies have a connection with Geico. |
That is my point exactly. It would be deceptive only if Google or the advertisers who came up under a search for Geico tried to pass their ads as being from Geico or one of its agents. Since that doesn't happen, the searcher still gets relevant search results. He finds Geico as well as others in the same business, giving him additional choices he may not know he had. It would be up to the surfer to decide after doing a search for Geico whether he wanted to go to the Geico site or one of the other sites offering the SAME products.
It is also a victory of sorts for Geico and others. Now, Geico could bid on State Farm as a keyword and list their offerings to people doing those searches as well. If they did the keyword bidding on competitor's names right, Geico could stand to gain a lot of business.
Would anyone's opinion change if the way the results were sold changed?
If for example, the top ad triggered to show on a search for your company name, domain name, or TM could be sold by the engine and once it was locked up by your competitor, the inventory was "sold" and there was nothing you could do about it?
You could by the second, third, fourth or whatever spots were still available but once they were locked up for a set period of time, you could not purchase them, until your competitors contract ran out?
luckychucky openly admits:
"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."
That's not entrepreneurialism, it's shady thievery.
It seems that someone missed the event that started this thread. A court of law in the United States of America just decided that what luckychucky "admitted" to do there is perfectly legal and not at all prohibited by trademark ownership.
How can it be "shady thievery" then?
Ok, you've got me there. Do you have a specific statistic on how many people comparison shop for insurance by using the term "Geico" rather than the term "comparison shop for insurance"? I know there must be someone out there like me that would use "Geico" to search for the Geico company, and "comparison shop for insurance" to... well, if you don't get it by now, I guess continuing this explanation would be pointless.
The large majority of searchers are *much* less educated about optimal search methods than the participants on this forum typically are. Experience by search engines and other sites with a search function indicates that a significant portion of the population would indeed be likely to enter their best known brand even if they really wanted to search for a product category.
I'm opposed to giving companies the right to buy their way to the top of a search for another company's name and calling that the most "relevant" result.
As an opinion, that's completely justifiable. Only that the US law makers and courts don't happen to share that opinion.
Exactly what I was thinking. You could easily 'buy' someones domain for their biggest traffic keywords and, write some bad copy, and if the user were silly enough to click, send the user to a rubbish page on their site - like the glossary page.
An effective way to cut the competion's income. A short term loss for you, but in the long term, a winner as your main competition can be driven to the wall.
Just waiting for every uk company to protect their trademarks on G now.
Again: Google is not a public utility. Google is a free service which harvests and arranges free random content afloat in CyberSpace. If any company were dumb enough to attempt a lawsuit against a search engine, claiming unfair or inaccurate serps results, it would lose thoroughly, be beaten to a bloody pulp, then laughed out of court.
By virtue of providing this service Google has earned the right to display any advertising it chooses alongside the results it provides, as long as the ads themselves conform to the standard body of law which has always applied to all advertising in traditional media. And yes, Google in fact has the right to auction off the top serp positions- provided all those CreamOfTheCrop Phd.'s at GooglePlex ever suddenly went collectively braindead enough to even entertain the idea. Doing so would of course be the death of organic relevance on their engine, pretty much the most bonehead move possible, and Google suicide.
Don't like the state of things? You are certainly free to start your own search engine, operating upon whatever more perfect principles you prefer. Go for it. In all sincerity, we all wish you the best of luck- and believe me I'm not being sarcastic. Go for it. Please.
Just let me ask a question.
Under the current system in place,
Can you bid on the word 'google' in Adwords?
Tee hee. I think, if you build the ballpark, you can call the shots and prevent your competitor from naming it after himself...it's a perk of having earned the position.
I just Googled Google, and there was only one AdWords ad, I kid you not:
Hey, and one more thing- just to preemptively address the issue of some theoretical antitrust suit against Google some day: Google keeps its dominant market position solely by virtue of the quality of services it provides. Nobody's forcing anyone to use the Google engine for searches. Internet entry is easy and cheap- just buy a domain, get hosted and start coding, geeks. The field of competition is wide open. Any dreezack with zero capital, living on his mom's couch, but with a brilliant new idea for a superior search algorithm has all he needs to topple this giant on a level playing field.
Now, making your search engine the only allowable companion to an OS's bundled browser...that could be a different story. I heard there's this guy who tries to do stuff like that. Bill Something, I forget his name.
[edited by: eWhisper at 5:45 pm (utc) on Dec. 19, 2004]
[edit reason] Please Don't Copy Other People's Ads [/edit]
skibum, that's how AltaVista used to sell SE keyword-triggered banners in the '90s. No, my opinion would not change. I view this a a consumerist issue
Chndru, yes, you can bid on "google". I've done it.
I found this comment on another site, found it interesting:
"My grocery store has been printing coupons with the receipt forever.
I buy pampers, and a Huggies coupon pops out.
What's the big deal?"
(and eWhisper, I understand & accept your edit to my post about the only ad which came up in a search for 'Google'. Sorry about that.
Just know, everyone, it's an ad for generic Via6ra!)
luckychucky, that's right. Ever since scanners were deployed in grocery stores they've been using the data for couponing. You can pay the grocery stores to target your coupons to people who buy your competitor's products.
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