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Adword Trademark Infringement on Triggered Words?

What about descriptive so-called "Trademarks". I got a nasty phone call!

12:00 am on Sep 9, 2004 (gmt 0)

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I have a site and am advertising in a certain industry niche for it on Google. My keyword list does not contain a bunch of company names and trademarks. It contains a large variation of descriptive names and terms both narrow and broad for this industry.

Today I get these 3 phone calls starting at 5 in the morning. From an unknown number and with no message left. Returned the call to find out who keeps calling and at such odd hours. Turns out it is this lawyer for this large company that claims I can infringing on there trademark by bidding on their company name in Google. The lady was very nasty and hostile. She said she tried to email me at the address for Whois but it bounced back. Asked for my name for the "correct" address. I gave her another email address to try. She said so she could send me a formal notice. Then ended the call with "My client takes this issue VERY SERIOUSLY!" In a threatening tone. I said, O.K. and hung up.

I went to my Google account later to see if that keyword was in my list and it was in an adgroup with other similar descriptive names. Including the plural version of it and an -ing version of it and other names for the first word that mean the same thing with the same last word etc. Apparently I was using it and came up with it because of it's descriptive value to the industry and products. Not because of it's 'secondary' meaning.

It is 2 Very Generic words that are very descriptive in a broad sense to this industry in general. I have heard of this company before but I was certainly not thinking of them when I put my keyword list together. My keyword had nothing to do with them. And while I'm sure that part of the traffic triggered by these words are from people who are searching for that particular company, I'll bet half the traffic comes from people using these words because of their descriptive quality looking for that type of product or general information. They are even trying to protect just the first word itself which is very generic, not even just to this industry to to many different industries and meanings!

I am not even using the words in my Ad Copy on Google. Only in the keyword real estate space.

On Google there are currently at least 9 other Advertisers bidding on this term and coming up after typing that exact match of it into Google. Including affiliates for other just as big and even bigger competitor companies of theirs. I'm certainly no competition for them.

I deleted the keyword for now. Just until I figure out if they really do have any merit to prevent others from bidding on this term.

It's not as though anything in my ad mentions them or these exact words and my url domain name does not contain either of these words in it. So there is obviously no confusion there.

"Generally infringement occurs when there is a likelihood of confusion in the average consumer."

So since there is no confusion and it is a general, general descriptive term that can mean multiple things, do you think there is any merit to their threat of suing me?

When she called I was nice and said that I was unaware of the exact contents of my keyword list and see if there co. name was in and if so, delete it. Yet that did not stop her from being extremely
hostile and threatening (chest pounding). It's made me feel very uneasy all day. I don't like the way these greedy lawyers and business behave. All strong-arming and unfriendly. As much as they might think otherwise, it does not make for effective communication or relationships and effective resolution. If they have a valid legal claim that's all I need to know (factually) in order to comply with there demands. I don't need threats and accusations.

She called back later and left a message accusing me of giving her an invalid email address on the phone. She said it back and it was not the one I told her. It's not my fault that some incompetent lawyer doesn't listen to write something down right and then instantly accuses me of giving false information. She also said that having incorrect contact information for my site is in violation of my registrar terms.
All my information was 100% correct when I registered everything and obviously she called me through that contact number listed so it is correct. My home address is even listed on it. Just because I don't have another address to list. But for now, I think I will always start paying for the privacy proxy service. That is valid to have and lists the co. info, not your own. Maybe I should list my Attorney's contact info on my Whois for now on! LOL!

9:46 am on Sept 9, 2004 (gmt 0)

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Whoa! Heavy stuff. Why do laywers/people have to be so aggressive and unfriendly?
Chin up.
11:08 am on Sept 9, 2004 (gmt 0)

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Straight forward and very standard scare tactics - go in strong and hard on the first occasion & bully you into submission. See if it gets you to comply with the demands being made without anything 'legal' actually taking place.

Narrows down the 'competition' quite quickly too.

Personally, I'd be inclinded to put the keyword back up and quickly find out exactly where I stood in the matter. (that does not constitute legal advice by the way ;-))

If you're not infringing - stuff 'em, and stuff 'em good!


3:42 pm on Sept 9, 2004 (gmt 0)

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How important is it to your business? If the traffic on this stuff is trivial, it's not worth the bother.

If it's moderately important, and you're just advertising in US/Canada, keep running the ad and tell them to contact Google if there's a problem. Claim no responsibility. (I'm not a lawyer. I just run lots of Adwords campaigns).

4:07 pm on Sept 9, 2004 (gmt 0)

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Yeah I seriously doubt that there claim has any merit in this case. Not that there name is not a registered trade-name or service-mark. But in no way do I think this constitutes any infringement of that privilege.

Google shouldn't even allow these kind of monopolizing tactics to push there advertisers out of a space that Google sells.

But since, nothing is defined in this area of trademark advertising medium and the keyword was not bringing in more then a few clicks a day I deleted it. According to my stats I've only had one person even convert coming from that keyword. So it wasn't bringing business. It's value to me was only in yet another trickle of traffic to add it up among thousands of other generic descriptive keywords. I get just as much or even more traffic off of it's verb version -ing at the end keyword. Watch, they come back and try to claim that one as well. Anything remotely related to the generic words they choose for there company. They are a huge corporation, but their name is so general.

I doubt that I'd hardly be worth suing. I'm just a one-person, self-employed, working at home, 27 yr old. When she called on the phone she was asking me what the name of my corp. was. I said, there is no name, it's just me! I guess my site looks very professional and gives the illusion of a real company. I'm just a good designer. : )

When I wrote her back I made sure to tell her that despite the fact that I have complied with her treats and demands, it is only because the keyword has such miniscule value to me to be worth disputing over. That the action should not be taken as any agreement or admission that I ever was in infringement or not in fair use. That I completely disagree and think they have no merit to their claim.

I just can't believe that this is all their lawyers do. She said she was their outside attorney hired specifically for this purpose to policing their tradename. If they didn't choose such a general name they wouldn't have to be spending as much on policing it as they do. I would think it would just be an additional job for internal attorney staff.

Anyways, I hope that I don't start getting a bunch of C & D's. I don't have any other co. names in my keyword list (that I know of) but I did want to start bidding on different names now that Google has started to allow the buying of all the advertising space and keywords. I'll bet this starts becoming a much bigger issue and occurrence of C & D's everywhere now that Google stopped taking complaints or stopping it.


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