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Lawsuit Says Google's Sale of Keywords Is Illegal 247

Posted by Soulskill from the search-is-mightier-than-the-sword dept.
Hugh Pickens writes "Google encourages advertisers to purchase other companies' trademarks as targeted search terms, and they're expanding the practice into 190 countries. When Audrey Spangenberg typed the name of her small software company into Google and saw the ads of competitors that had paid Google to display their marketing messages whenever someone searched for FirePond, a registered trademark, she was furious. This week, her company filed a class-action suit against Google in federal court, saying that Google had infringed on her company's trademark, and challenged Google's policies on behalf of all trademark owners in the state. Legal experts said it was the first class-action suit against Google over the issue. Google's acceptance of such competitive uses of trademarks has irked many other companies, including the likes of American Airlines and Geico, who have filed suits against Google and settled them. Many brand owners say the practice abuses their brands, confuses customers and increases their cost of doing business. 'I know of several companies spending millions of dollars a year in payments to Google to make sure that their company is the very first sponsored link' on searches for their own names, said Terrence Ross, a partner at Gibson Dunn, who represented American Airlines in its suit against Google. 'It certainly smacks of a protection racket,'"
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Lawsuit Says Google's Sale of Keywords Is Illegal More

Lawsuit Says Google's Sale of Keywords Is Illegal

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  • There have already been plenty of cases that addressed this very issue, with a lot of them coming out on the side of the search engine that's providing the ads.

    I'm not entirely sure how you're going to prove trademark infringement. Courts have argued whether Google's use is even commercial, much less if the use has a significant likelihood of confusion (mainly because Google's act of only putting these ads in a sponsored link is usually sufficient for the ordinary user to know that the trademark owner isn
  • Here's the google search for Geico [google.com]. You will notice it's clean and clear of any advertisments. Likewise with a google search for AA [google.com], contrast it to a American airlines [google.com], which has an ad. These are on Google's banned ad keywords, such as guns [google.com], Jews [google.com], ammunition [google.com], and other content that Google's morals would rather not see people make money on.

    • Apparently, they've already added "FirePond" to that list as a search for that term yields no ads [google.com]. What's more, the first link is to firepond.com, presumably the plaintiff's company. So I'm not really sure what the problem is.

      • Re:Geico banned keyword (Score:4, Insightful)

        by Thing 1 ( 178996 ) on Saturday May 16, 2009 @10:51AM (#27979025) Journal

        So I'm not really sure what the problem is.

        Uh, the problem is systemic.

        We like car examples here, so: your mechanic keeps breaking a different part when you come in, so that you have to pay him to fix it a few weeks from now. You catch him at it, and he fixes that broken part for free, and your car never again has mysterious parts broken.

        However, he continues this practice with all his other customers.

        The class action suit is to get him to stop breaking anyone's cars, not just your own.

        • But is Google breaking something? On purpose? With malice?

          If Google was doing this with the real search results, we might have a problem. Hell even if they put the sponsored ads in the same column right above (like on ebay, or other search engines (MSN)) you might have a case.

          Remember a google search result page, in theory, isn't any different than any other web page. So the advert is simply being displayed on a specific page of google's website. It is no different than me paying to have my SQL

        • Re: (Score:2)

          by glwtta ( 532858 )
          Wait a minute, did you just use a car analogy to explain "doing something to everyone, as opposed to a single person"? Going a little overboard, no?

    • Re: (Score:2)

      by Reziac ( 43301 ) *

      When I tried the Geico search link, the first display DID have a yellow ad band at the top. The page immediately reloaded, WITHOUT the ad band. WTF??

      ALL of your sample links did the reload thing, but in the geico case it happened slowly enough that I could actually see the ad band, which DID contain text.

  • Comment removed (Score:5, Insightful)

    by account_deleted ( 4530225 ) on Saturday May 16, 2009 @09:33AM (#27978417)
    Comment removed based on user account deletion

    • Comment removed (Score:4, Insightful)

      by account_deleted ( 4530225 ) on Saturday May 16, 2009 @10:18AM (#27978761)
      Comment removed based on user account deletion

      • Re:These suits against Google are losers (Score:4, Insightful)

        by Blue Stone ( 582566 ) on Saturday May 16, 2009 @12:26PM (#27979683) Homepage Journal

        The way I see it is that it's little different to a supermarket having competing brands of say, coffee in the same aisle, or shelf.

        If Dowe Egberts want - or even pay to be next to Percol the fact that they SAY to the supermarket 'put us next to the Percol coffee' doesn't infringe Percol's trademark, and the resulting proximity doesn't create any confusion.

        The search results are an on-the-fly aisle created on the use of a keyword. The keywords are sold simply to REFERENCE the competitor's product so that the 'aisle' can be created.

        I don't think it's so much about trademark law or confusion as brand owners whining that a search for their trademark produces a list of results that is not exclusively about them! Oh my! Someone wanting to buy our trademarked product might be reminded that another competing product exists and might buy that instead!

        In other words they're trying to stifle competition.

    • Trademark isn't really about sources anymore (Score:5, Informative)

      by langelgjm ( 860756 ) on Saturday May 16, 2009 @10:24AM (#27978811) Journal

      Trademark law is all about protecting consumers from being deceived about the source of goods/services.

      In theory, yes, but in practice (as you probably know, since you know what initial interest confusion is), that's not the reality. IIRC, consumers don't even have standing to sue in a case of trademark infringement. Maybe they can sue for false advertising, but it's the trademark owner who has to bring the lawsuit for infringement.

      Besides, with the expansion of trademark due to the notion of "dilution", and the licensing of trademarks for purposes other than source-identification (sponsorship, etc. - the stadium doesn't come from M&T Bank), it's hard to argue that trademark is all about protecting consumers, or even mostly about it anymore.

      In 1-800 Contacts v. WhenU, [internetlibrary.com] WhenU didn't run into trouble because their ads popped up in a separate window. That's not the case with Google (though they do clearly say "Sponsored Link"). WhenU was also not found to be "using" the trademark (despite including it in a database), because "use" of a trademark for the purpose of infringement has to be in commerce, and simply using the mark in a database didn't count as such.

      • In 1-800 Contacts v. WhenU, WhenU didn't run into trouble because their ads popped up in a separate window. That's not the case with Google (though they do clearly say "Sponsored Link").

        A separate window from what, the content of the site in question? Google isn't displaying ads next to the content of the site. They are displaying ads next to a fair-use sized snippet of the content on the site, namely the search result. This very tiny piece of text is carefully constructed so as not to violate any legal guidelines by people much smarter than either one of us (probably) and is in any case a de facto allowable amount of content to display for the purpose of helping a search engine user decide whether that is the result they're looking for. When you click through the site, there are no more google ads.

        • Re: (Score:3, Insightful)

          by langelgjm ( 860756 )

          A separate window from what, the content of the site in question?

          Yes.

          This very tiny piece of text is carefully constructed so as not to violate any legal guidelines

          The thing is, this is not settled, black-letter law. The best "guidelines" are probably case law, and if you looked at the 1-800 Contacts v. WhenU case, you'll notice that other courts have ruled in different directions.

          by people much smarter than either one of us (probably) and is in any case a de facto allowable amount of content to display for the purpose of helping a search engine user decide whether that is the result they're looking for.

          More informed about the relevant law? Sure. Smarter? Maybe, but not necessarily. You don't necessarily have to be "smart" to be a lawyer (though I'm sure Google's lawyers are better than the average one).

          Furthermore, just because they're very smart doesn't mean other very smart people wo

    • Re: (Score:3, Interesting)

      by StormReaver ( 59959 )

      > The primary focus is *not* protecting the trademark owner.
      > Trademark law is all about protecting consumers from being deceived about the source of goods/services.

      That is accomplished in part by protecting the integrity of the trademark. Google is allowing company A to advertise via explicit use of company B's trademark, which is illegal. There are only a few instances in advertising where using another company's trademark is allowed, and this isn't one of them. Using another company's trademark

      • Google is allowing company A to advertise via explicit use of company B's trademark, which is illegal.

        I'm sure it is somewhere, the world's a big place.

    • My concern would be the implications of Google not being able to sell ads for competitors for particular, trademarked names.

      It's been shown to be fairly common to "brand" a particular type of product with a trademarked name. I want a DVR, but to me (well not me, but some people), they're all "TiVos." That's a pretty hefty branding problem for someone trying to make a competing product already; if they can't even advertise in the same space, or that their product is like a TiVo, but better...

      Or an iPod(TM).

  • what if i wanted to buy my wacky inflatable arm flailing tubeman from Al Harrington but when i searched google for this product all i got were competitors products, so i would be sorely disappointed in google's help in finding the product of my choice, not only google us disappointing the marketers of products they are also a disappointment to the customers of said products, i think google is seriously fucking up with this practice...
    • Fine so be it, but it's up to the consumers to be upset that they aren't getting what they want on google, and if that's the case, they should vote with their feet. This isn't an issue to be handled in the courts.

    • Re:its not right (Score:4, Insightful)

      by Aladrin ( 926209 ) on Saturday May 16, 2009 @10:20AM (#27978785)

      They aren't messing with the -results- of the search. They are merely adding advertisements around the search. You'll still be able to find all the wacky Al Harrington products you want.

      • Assuming he's able to type the search terms in correctly which is pretty unlikey given his writing "style".

  • Shocking. (Score:4, Insightful)

    by moogied ( 1175879 ) on Saturday May 16, 2009 @09:46AM (#27978523)
    Google, once again, is just using the basic idea of competition to drive a market. There is nothing to see here but some whiney person who is shocked to discovered the world does not revolve around them.
    • This Spammenburger (or whatever she's called) bitch works for a VC company. Never met one of them that wasn't an arrogant asshole.
  • Call me stupid, but I'd never piss off the biggest advertisement company on the net.

    What do they think it will happen if they win?
    • What do they think it will happen if they win?

      FirePond will get back control of their own trademarked name ..

      • Re: (Score:2)

        by MikeDX ( 560598 )
        and possibly if google were really pissed, they coudl just blacklist their domain name and then they wouldnt show up in search results AT ALL!

  • IANAL, but from what I've read, and what I've heard lawyers quote, one of the main factors in judging trademark infringement is the potential of confusion in the mind of the consumer (citation [findlaw.com]).

    So if company A can show that the intent of a competitor (company B) buying keyword ad space specifically with company A's trademark in it and their intent is to confuse consumers into thinking company B is company A, then they have a case.

    That said, there may be more to this due to the actual practice I've seen in b

    • I think this is more akin to a Ford dealership placing a highway ad right before the exit to the GM dealership. This is just another advertising medium and the business see customers heading to a certain product and want to make sure on that path that they inject their own product. So long as the competing businesses aren't trying to pass themselves off as the original company I don't think they have anything here. Further, I think Google needs to be shown as complicit in that as well.
  • This is equivalent to putting "recommended books" near other similar, popular books in a book store. Only, companies pay you to have you move your book towards the prime areas. No trademarks were infringed, nothing was misleading, its the digital equivalent to rearranging stock in a store.
    • "This is equivalent to putting "recommended books" near other similar, popular books in a book store"

      This is like going into the store and asking to see a range of Nintendo games consoles and the staffer slipping in a PlayStation on top, cause the company slipped him some notes :)
      • Yes, and as you can see, theres no trademark violation. Sure, you might want to shop someplace else, and there are loads of search engines. But its not illegal and sure as heck doesn't involve trademarks.

  • The purpose of a trademark is to identify a product uniquely; this is done in order to help buyers, not to help companies.

    As long as customer is not misled about what he is buying, the use of the trademark is OK. So, if someone responds to a search for "FirePond" with an ad for "SmokeLake", that's not a problem. They can even talk about "FirePond" and why "SmokeLake" is so much better.

    It would cross the line if SmokeLake made a web site that looked like it belonged to FirePond and customers might actually

  • Heh... (Score:3, Interesting)

    by IronMagnus ( 777535 ) on Saturday May 16, 2009 @10:07AM (#27978657)
    http://www.bizjournals.com/twincities/stories/2009/02/16/daily23.html [bizjournals.com] 4th or 5th result when I searched for 'FirePond'

    • ALL their assets are being sold off? They still seem to have a domain.

    • In other words, they're going bust and rather than actually try to fix the problem they decided to see if they could get some cash out of google.

  • Their Real problem... (Score:4, Funny)

    by zippthorne ( 748122 ) on Saturday May 16, 2009 @10:12AM (#27978703) Journal

    1. FirePond, Inc.
                FPX offers the only true multi-tenant configure, price, quote solution featuring our robust product configurator software and unqiue proposal generation ...

    So, what do they sell??

  • I think a real problem is that many names for trademarks and businesses will be duplicated through sheer probability, I really doubt this case has any legs at all against google. Google gahters the enormous amounts of data from all over the world, it would be like trying to sue someone because they have the same name as you or your business and they are located in another country. It doesn't make any kind of sense.

    Personally I think a lot of old laws simply have to be obsoleted or updated to deal with th

  • Idon't really see how this is any worse then generics that say "compare active ingredients to " and similar messages on storebrand food items. Sometimes they sit right next to the brandname as well, the horror!
  • I think this issue is one of the problems with old laws governing new technologies.

    It would seem that being able to generate money from someone else's trademark, copyright, etc.. would be an abuse without the owner's consent, however, trying to run a search engine without them would kill a critical function of the Internet. Web searches

    Now the choice is.. do we allow it for functionality or do we deny it on principle, or, as is really happening, just deny the use when you bring in enough lawyers.

  • I read all these analogies on what it is that Google did and here is my take:

    For the purpose of this analogy imagine Google owns a telephone directory where your number gets listed for free for your business, but there is also a "Yellow Pages" section, where you can pay to have your business listed with number and some info - now imagine you only have your number listed in the free section, and a competitor of yours bought an add, put YOUR company name in it with THEIR number.

    Google adwords is so powerful t

    • Re: (Score:2)

      by Fastolfe ( 1470 )

      The ads don't contain the trademark, they're simply triggered by a search for that trademark. The former would be confusing for consumers, since it would make them think the ad is for that trademark, while the latter is just an ad for a related service (that happens to be a competitor).

      If an ad is misleading, it needs to be pulled. But if it's just an ad? Why do searches that contain a trademark have to be handled any differently than any other search? This opens up a whole can of worms. What about tra

      • While you make good points, and kinda demonstrate my point of the legal mindset not having caught up with the technology your last sentence I disagree with.

        These are not pure Advertisements, but Adwords - it is a keyword driven advertising system, and you buy the keyword and that paid-for keyword becomes the Adword.

        Do you see the fine distinction?

        That brings me to the point I made about receiving revenue from the adwords. My name is Quintin, I own quintin.co.za. Say this was my business name and also my tra

        • (bad form I know BUT)

          I just had the thought that after reading my above reply one of two things will happen:

          Someone will buy quintin.co.za from google and direct it to a porn site and really screw up my reputation, OR someone will do a whois lookup on the domain and mess with my personal information.

          Sigh - THINK before you post!

  • A big reason that America is in the shape we are, is because far too many idiots sue. And they sue, because some GD lawyer tells them that other party will settle. I went through a 4 year divorce because my ex was told that it would cost me 100K (on top of the money that I had already given her on a 1 year marriage) and that I would settle rather than fight it. It cost 60K+ (less than the 100K), but still, this was caused because the other lawyer pushed this crap.

    Google, if you settle, it will keep coming

    • Re: (Score:2)

      by Thing 1 ( 178996 )

      I went through a 4 year divorce because my ex was told that it would cost me 100K (on top of the money that I had already given her on a 1 year marriage) and that I would settle rather than fight it. It cost 60K+ (less than the 100K), but still, this was caused because the other lawyer pushed this crap.

      I hope for your sake that you use a contract for any future open-ended commitment.

      Marriage is business. Never enter a business partnership without protecting yourself first.

      Children are a different story; b

  • The companies buying the Google keywords are explicitly using competitors' trademarks to further their own business. They are the ones that should be sued, and rightfully so in my opinion.
  • I once searched for "Kindle" and got an AdWords link to the Sony e-Reader with the tagline "Rekindle your love of reading".

  • You know, if I'm looking for a competitor to Adobe (for example), I *want* to be able to see competitors' ads when I do a search for Adobe.

  • A while back I got a call from a Google salesman, wanting to sell me various keywords for about $300/month, so my website would pop up when those keywords were used.

    So explain to me how this sales dude found my website in the first place, hmmmm??

    ======

    I got a similar call from Linkfish last week. They wanted to sell me those same keywords for $1300 and up, "for life". Meanwhile I was busy looking up info on the company, which turns out to be a subsidiary of eperks (whose reputation is far less than sterlin

  • I can't quite decide where I come down on this issue...I'll have to think it through, and of course my decision will be final and binding on all of you. In the mean time, consider this analogy.

    There's a stretch of highway, a few hundred feet long. On the left end there's a store called Brass Cat Shoes(tm). Brass Cat Shoes has been there for quite a while, and is pretty well known, at least in Brass Cat Shoe circles. And they have the trademark. On the right end of the stretch of highway is another store nam

    • Dave pays billboard owner Boogle to display "Brass Cat Shoes" in type that will occupy 1 full degree of arc of a viewer's vision, vertically. He also pays for an equally large arrow, to be displayed, pointing to his store, down and to the right.

      Bit that really fails highlighted

  • Google will gave them coupons for 10% off on gmail.

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