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Copyright Infringement Letter
Received Cease and Desist Letter Because of my Adwords Campaign
jgold454




msg:3970123
 10:07 pm on Aug 11, 2009 (gmt 0)

I recently received a cease and desist letter from a competitor because one of my ads appears when you do a search for their name. My ad does not use their trademark at all. It just appears when their name is searched. Any advice on what the current legalities are with this scenario? My impression was that this is completely legal as long as you don't actually use their name in your ad.

 

LucidSW




msg:3970148
 10:40 pm on Aug 11, 2009 (gmt 0)

I'm no lawyer and laws differ by country and state. But I don't believe there is anything they can do to prevent you from bidding on their business or product name.

Showing their name in your ad may be a different story. They can tell Google they want their name trademarked and not showing in ads. I don't believe they can do anything about you having the name in your ad until they do so. It would be a good idea until then to have the trademark symbol in your ad next to the name.

jgold454




msg:3970153
 10:47 pm on Aug 11, 2009 (gmt 0)

I am not using their name at all in my ad.

Atun




msg:3970264
 3:10 am on Aug 12, 2009 (gmt 0)

Jgold,

I wonder if your ad is showing when the competitor's name is searched due to expanded broad matching?

They make widgets, you make widgets....

I've seen crazier things in my logs that have me scratching my head.

Atun

StoutFiles




msg:3970278
 4:33 am on Aug 12, 2009 (gmt 0)

Sounds like they're being bullies. If their company name happens to be a keyword they don't just naturally get all the traffic for that word.

smallcompany




msg:3970297
 5:04 am on Aug 12, 2009 (gmt 0)

Any advice on what the current legalities are with this scenario?

No such advice can be found here - simply because nobody here knows much about your situation.

Depending on the real scenario, it may be nothing, something, or everything.

You're the only one here knowing how worth is what's happening out there - my understanding is that you're actually bidding on their name and want it to stay like that, and that you're compliant with what Google enforces out there.

Some companies are very protective to their TM(s) and they will always take things to the highest level (like court) and "kill" the opponent by the cost, even if they don't win at the very end.

Your best bet is to seek legal advice - if it's that serious and you don't want to give up on their name. ;)

Otherwise, stop bidding, or enter it as a negative match if it's about broad match causing your ad to appear - end of story.

And yeah, if it's some kind of a general word or phrase, then you should have some ground for the behavior of your ad(s), but still, check if you can get an advice from somebody who's qualified.

phranque




msg:3970307
 6:14 am on Aug 12, 2009 (gmt 0)

this list might indicate what google thinks about bidding on keywords that are trademarks:
Regions for which Google will not investigate the use of trademarks as keywords - AdWords Help [adwords.google.com]

netmeg




msg:3970503
 1:57 pm on Aug 12, 2009 (gmt 0)

The main thing to remember here is - just because Google may allow it (or if you're not bidding on their name, broad match brings it up) doesn't mean it's *legal* in your location or in your particular circumstances. So yes, if you get a C&D, you march it over to your lawyer and get his/her opinion on your next action.

jgold454




msg:3970533
 2:18 pm on Aug 12, 2009 (gmt 0)

Is it different state by state? I am in the US.

netmeg




msg:3970632
 4:22 pm on Aug 12, 2009 (gmt 0)

Don't know. What I do know is that you should probably talk to a real live lawyer. I know it costs, but if you want to continue bidding on that term, that's the cost of doing business. I sure as heck wouldn't go by anything I see in a forum.

outland88




msg:3970731
 6:15 pm on Aug 12, 2009 (gmt 0)

My ad does not use their trademark at all.

You may not use it in the foreground but do you use it in the background or in your keyword list?

Was this letter from an attorney?

Do you think Google will sit beside you in a courtroom to help you or quickly divorce itself of any legal entanglements if subpoena for evidence is made? I know most would quickly hand over the evidence in a heartbeat to divorce themselves from culpability especially with a total stranger.

jgold454




msg:3970773
 7:28 pm on Aug 12, 2009 (gmt 0)

does anyone know where I could find a good trademark attorney that is really knowledgeable in the Adwords field?

Demaestro




msg:3970798
 7:52 pm on Aug 12, 2009 (gmt 0)

jgold

Of course this is my opinion and is in no way legal advise.... However before you entertain their letter with an attorney, I would do a couple things.

1) Ask them to provide the registration for the trademark.

2) Ask them to detail where and how you are infringing on their trademark.

3) Ask them to provide examples of your infringement. For example a screen shot of your ad using their trademark.

Usually a cease and desist letter is a empty threat. Most often only someone with a lot to lose and and deep pockets will pursue this in court.

They have a tough case to prove on their hands.

My understanding of Trademark infringement hinges on "confusion in the marketplace", also from what I have read you actually have to use the mark, which you are saying you aren't.

I have had 4 cease and desist letters in the past 9 years. I only replied to one and I asked for proof of infringement and I never heard back, the other 3 I ignored as they were as ridiculous as the one you got and I never heard another thing about them.

I wouldn't worry about it until an actual lawyer contacts you. A cease and desist letter cost $50 to get and you don't have to be in the legal right to send one.

If googling the trademark returns many results including your ad I am not sure how they could say your ad causes confusion when there is likely 100,000+ results.

jgold454




msg:3970799
 7:55 pm on Aug 12, 2009 (gmt 0)

I have received all of that information from them and it was from an attorney.

talismon




msg:3970812
 8:26 pm on Aug 12, 2009 (gmt 0)

I had thought Google recently changed their policy on using competitor and/or trademarked terms in the actually ad itself. You can certainly bid on trademarked or service marked terms as keywords. This is an empty threat.

We had a similar situation a few years ago when we received such a letter from a competitor. The funny thing was THEY were bidding on our brand name too. We took the doc, did a find and replace using their company name and sent it right back to them!

Cooler heads prevailed and we came to an agreement that we would not bid on each others brand terms.

netmeg




msg:3970825
 8:48 pm on Aug 12, 2009 (gmt 0)

Again, I repeat. Just because *Google* allows it doesn't mean it's legal in every circumstance. Google's policy just tells you what THEY allow. As mentioned above, Google isn't going to go to court with you to defend you.

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