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Advertising: Trademark infringement suit hits search again

     
1:59 pm on Jun 19, 2006 (gmt 0)

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A Colorado-based dating Web site has sued Yahoo and three other companies for allegedly paying to have their ads come up when its name is typed into the Google search page.

"Defendants' willful insertion of plaintiff's trademark into paid advertisements constitutes an effort to artificially inflate their profits by knowingly misleading consumers as to the source of the response to their search," the lawsuit said. "It has caused, and continues to cause, actual confusion, is tarnishing the goodwill and reputation of plaintiff, and is causing lost sales."

Trademark infringement suit hits search again [news.com.com]

4:43 pm on June 19, 2006 (gmt 0)

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Hmmm, the article isn't clear as to whether the name was used as a keyword, or as ad text through use of the keyword insertion tool.

If it was only used as a keyword then I don't see what the problem is. If used as ad text then a simple complaint to Google would've solved the problem.

In other words, yet another frivolous lawsuit....

6:03 pm on June 19, 2006 (gmt 0)

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I am thinking of suing someone to get some publicity and free one way links. Any suggestions ;)?
6:30 pm on June 19, 2006 (gmt 0)

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I am thinking of suing someone to get some publicity and free one way links. Any suggestions ;)?

Suggestion: sue me so we can both benefit from the free publicity.

6:50 pm on June 19, 2006 (gmt 0)

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no man, sue that dude who made the million dollar home page.

Remember that guy?

no?

8:40 pm on June 19, 2006 (gmt 0)

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In this kinds of cases, how much does the plentiff usually ask?
10:03 pm on June 19, 2006 (gmt 0)

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>> the article isn't clear as to whether the name
>> was used as a keyword, or as ad text through
>> use of the keyword insertion tool.

It does answer that; sort of:

The lawsuit claims that Yahoo and the others inserted metatags containing the words "lovecity" and variations on that name as keywords into Google's AdWords paid search advertising system

I'd say we can dismiss the "inserted metatags" part as simply cluelessness, and take it that the dispute is over terms being used as keywords.

I was about to blame the reporter for that, but the suit itself uses the same language.

10:17 pm on June 19, 2006 (gmt 0)

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>> In this kinds of cases, how much does the plentiff usually ask?

Usually they do just what the plaintiffs in this case are doing: they don't ask for any specific amount. The amount of damages will be "probed at trial," with potential scenarios for what damages might be found to be used as leverage during pre-trial settlement discussions.

10:53 pm on June 19, 2006 (gmt 0)

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This is a move to start taking action on those scraper sites, there are actually a few lawsuits pending on this issue.

Think about it, you trademark a product or name, then someone pays for the advertising keyword and sells a knock off product or service.

10:59 pm on June 19, 2006 (gmt 0)

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>> This is a move to start taking action on those scraper sites,

Really it's a different issue. The plaintiff is claiming that the defendants are using plaintiff's trademarks as keywords in AdSense campaigns. So when you search for "plaintiff" you see not only his ads, but ads for "defendant."

Among the defendants are corporations like Yahoo. Suing Yahoo for how they advertise on Google isn't going to do anything about scrapers -- which don't typically rely on advertising focused on other peoples' trademarked terms to bring in traffic.

11:37 pm on June 19, 2006 (gmt 0)

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It could trigger numerous lawsuits citing the case with the same principles and holding scraper sites legally accountable for stealing trademarked search terms and hijacking content aimed at deceiving web visitors to further their own greed.

It could directly impact on all search landing pages as yahoo is a search engine, so all similar tactics used by all search engine landing pages could also result in a lawsuit - depending on the outcome of the case.

5:11 am on June 20, 2006 (gmt 0)

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I wonder if they checked to see if it was a Yahoo affiliate using the Yahoo display url? Has anybody heard if this may be the case?

[edited by: eljefe3 at 9:20 am (utc) on June 20, 2006]

5:36 am on June 20, 2006 (gmt 0)

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I am mystified how anybody sees a connection to scraper sites.

As for the plaintiff, Alexa has their 3-month rank way below 100,000, albeit with a substantial spike over the past day or so. All they have to do is sue one blue-chip company each day and they'll be able to sustain their success.

6:59 am on June 20, 2006 (gmt 0)

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You do also have to prove you're protecting your trademark right?...
9:04 am on June 20, 2006 (gmt 0)

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"As for the plaintiff, Alexa has their 3-month rank way below 100,000, albeit with a substantial spike over the past day or so. All they have to do is sue one blue-chip company each day and they'll be able to sustain their success."

If that is true, this case is insane. I own I site with an Alexa ranking well above 100,000 (or below, depending on how you look at it). Anyway, the point is, my site receives way more traffic and I know that the number of people searching on our name is tiny. If even half of that traffic were going somewhere else because of competitors bidding on our name (which they do), it wouldn't be worth the paperwork to file a lawsuit. I think there is one of two things happening here, or perhaps a combination of both:

1) Some small company wants to make a name for themselves by suing bigger competitors rather than by providing a better service.

2) Some attorney with an obviously-limited understanding of web marketing has decided to make a name for themselves by going after a large company over a hot topic issue.

I really hope Yahoo! go after them with everything they have. Perhaps they can even force a ruling on this once and for all. Based upon the ads still running on Google, only a complete and utter moron could be "confused" by the advertising methods being employed here. Why must we always let the lowest common denominator dictate the law?

[edited by: eljefe3 at 9:19 am (utc) on June 20, 2006]

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2:02 pm on June 20, 2006 (gmt 0)

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I disagree - I think it depends entirely on the intention of the 'defendent'. I work for a reputable financial organisation, who is currently suffering a similar misuse of our trademark. The abusers of our trademark are loan sharks, who are deliberately trying to mislead web users that the sites they are visiting are affiliated with my orgainisation. I don't think any reasonable person would argue that this is anything but damaging.

However, I would also agree that not all instances of 'trademark abuse' are as harmful, as the above.

2:53 pm on June 20, 2006 (gmt 0)

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If the trademarked word is used as a keyword there is no problem and it is not trademark infringement.

If the trademarked word is used as ad text thereby misleading consumers into thinking that the advertiser is the trademarked company then trademark infringement has occured.

You can't just sue someone for using your company name as a keyword. It is perfectly valid to present your company as an alternative to another. Therefore you can use another company's name as a keyword so long as you do not pretend to be that company.

3:41 pm on June 20, 2006 (gmt 0)

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>> If the trademarked word is used as a keyword
>> there is no problem and it is not trademark
>> infringement.

The day may come when there's some legal ground on which to defind that statement. But so far it's just one opinion.

>> You can't just sue someone for using your company name as a keyword.

If that were true, we wouldn't be here discussing a lawsuit that has been filed. American Blinds did. Also Le Meridien Hotels, GIECO, Rescuecom, Louis Vuitton, 800-JR-Cigar, Pets Warehouse, Metaspinner... and of course the plaintiff we're talking about here. Those are off the top of my head; there are probably more. Clearly you can sue someone for this (although these suits aren't for "using your company name as a keyword;" they're against the search engines that allowing that use).

A couple of these suits have been settled, but most are still winding their way through the courts. Whether this kind of use of someone else's trademarks is permissable is simply not clear today.

6:20 am on June 21, 2006 (gmt 0)

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You can sue anybody for anything. Filing a lawsuit means nothing. Companies settle lawsuits to avoid the legal costs and bad publicity, not necessarily because they would lose the case.

This is, of course, just my opinion, but how different is using a competitor's company name as a keyword from something like Pepsi comparing itself to Coke in the Pepsi Challenge? You would assume that if Pepsi was running an Adwords campaign that they would bid on keywords like Coca Cola. Using a competitor's company name as a keyword is perfectly valid if you are offering your services as an alternative, perhaps even as a better alternative. I don't see how this is trademark infringement.

12:52 pm on June 21, 2006 (gmt 0)

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I hope this goes through the whole legal process and the ruling is in favour of the defendant.

The idea that bidding on a keyword is somehow trademark infringement is crazy. If that's trademark infringement then launch suits against:

  • The searcher who entered "trademark" in the search box
  • Google who display "Search results for ...trademark..."

    It's like saying it's illegal to stand outside a bank handing out leaflets for a building society (assuming one has relevant clearance from the local council for leafleting if required).

  • 7:12 am on June 22, 2006 (gmt 0)

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    What happens then when a searcher enters Cocoa Cola into the google search box and 1,235,000 results are displayed. Can coke then sue google for showing all these other sites who may or may not be using the coke name in good faith. Does that then mean that google must link in to the trademark office and when a trademark is used can only display the results of the trademark owner.

    Riddiculous springs to mind here.