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Judge: TradeMarked Keywords Aren’t TradeMark Violations
A little sanity finally entered into the dispute over buying keywords which are trademarked names or phrases, when a judge sided with Google on Thursday by ruling that the act of selling the trademarked names does not constitute a commercial use of those names. In other words, advertisers should be able to purchase trademarked terms as keywords and run ads that appear in the search results. This is the first such ruling after four previous cases went the other way - an unfortunate fact that has led to many terms being unavailable for purchase.
I’ve never understood the logic of banning trademarked keywords. It isn’t confusing or deceptive to place yourself near a competitive product. In the real world businesses do this by physical proximity (why else are all the car dealers located on the same street) or purchasing ads near each other in the Yellow Pages or even via direct comparison advertisements - remember The Pepsi Challenge?
What it is is competitive. Yes the competitor gains advantage because the search engine allowed them to be found based on a search initiated based on your brand name or reputation. But it isn’t reasonable to want the benefit of public recognition and use of your name but also want to control the structure of related information. In fact, if Google and the others had any nerve they would simply return NO RESULTS when any trademarked term that had banned the sale of that term as a keyword. Let the trademark holder choose between no results or results with competitors. (Wanna bet these same jerks would then sue saying Google owed them search results!)
So if you create a valuable trademarked brand name or term, be prepared to have competitors who want to steal your audience. And if you can’t legally bully these competitors away, you do remain free to offer better products or services, better information and support, and/or as good or better prices.
Bonus: It turns out the lawsuit itself was placed as a publicity stunt.
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That’s the law here in the US. Competitive Advertising is okay and brought us the “famous” Pepsi Challenge which became a “Pepsi vs Coke War” on public television.
This kind of Advertising is not allowed in some other countries like Germany. A ruling there will look different and will come, if it didn’t already.
It really comes down to how the trademark is used by the party that does not own it. It is only fair to apply the same THOUGHT that are the basis for the offline world laws to the Internet and interpret them as good as possible.
A lot of the (most) harmful (ab)uses of the trademark are still not allowed. The ruling is no card blanche for typesquatters and traffic hijackers and competitors that try to deceive the customer by pretending to be the brand owner to get the traffic.
In affiliate marketing, people often confuse the issue of legality with the Terms and Conditions of a merchant’s program. Whether legal or not, merchants can (to their own detriment) ban all publishers from bidding on their trademarks.
With this ruling, merchants should ask their value added presellers to bid on their TMs to keep their competitors out.
As always, we’re here to help and provide a value-added service.
Good point David. Laws are only there to cover what you do not write into your contract or terms and conditions. You can specify in your contracts whatever you want, as long as you don’t add to it something that is AGAINST the law.
Even if an item in your contract is against the law (what should only happen if a new law gets passed that addresses an item in your contract) and thus renders it useless, the rest of the contract remains valid. Just to make sure, add to any contract that you have a “severability” clause in your contract that ensures that.
I am not a lawyer so please consult your legal adviser for details.