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Appeals Court Rules Against Google On Keyword Ads

timothy posted more than 5 years ago | from the black-robes-and-handwaving dept.

The Courts 39

Eric Goldman writes "The Second Circuit Court of Appeals ruled against Google in Rescuecom v. Google (PDF), a trademark infringement lawsuit over Google's keyword advertising practices. The court said: 'The Complaint's allegations that Google's recommendation and sale of Rescuecom's mark to Google's advertisers, so as to trigger the appearance of their advertisements and links in a manner likely to cause consumer confusion when a Google user launches a search of Rescuecom's trademark, properly alleges a claim under the Lanham Act.' While this result hampers Google's ability to end trademark lawsuits early, the case is still at an early stage and Google could still win."

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They also ruled against making (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27460341)

ack

Re:They also ruled against making (0, Offtopic)

Q-Hack! (37846) | more than 5 years ago | (#27460357)

Google is my God!

Re:They also ruled against making (1)

Q-Hack! (37846) | more than 5 years ago | (#27505217)

Google is my God!

Wow... the moderators have no sense of humor!

pretty limited ruling (5, Insightful)

Trepidity (597) | more than 5 years ago | (#27460407)

The ruling holds little besides the fact that Google did engage in a "use in commerce" of the trademarks. The Court followed the not hugely surprising line of reasoning that: 1) AdSense is clearly a commercial endeavor; and 2) AdSense clearly uses the trademarks, e.g. in its keyword suggestion tool. Therefore Google's claim, that the case should be dismissed immediately for failing to even fall within the scope of trademark law, was rejected.

Of course, Google's uses may still be perfectly legal. All the court's held is that Google does, as a factual matter, use the trademarks, and does so commercially. The case going forward will decide whether that use was within the scope permitted by trademark law.

Re:pretty limited ruling (2, Informative)

gravesb (967413) | more than 5 years ago | (#27461401)

It was a 12B6, so they didn't rule on anything as a matter of fact, just a matter of law, right? This ruling was just that a legal claim had been stated, but there hasn't been any discovery or fact finding, has there?

Re:pretty limited ruling (1)

Trepidity (597) | more than 5 years ago | (#27461505)

Ah yeah, I wasn't meaning to use "factual matter" as a term of art. The court relied on facts that were conceded by both sides, such as how Google AdSense operates, to determine whether, as a matter of law, such usage would constitute "use in commerce".

Does this really matter? (2, Informative)

Anonymous Coward | more than 5 years ago | (#27460487)

Trademarks *are* special entities under the law. Doesn't it dilute a trademark when your competitor or unrelated or derogatory things come u from a search? Ultimately google will prevail for the same reason advertisers can use names for comparisons in their advertisements, it's a free speech issue which will trump commerce law.

Re:Does this really matter? (0)

Anonymous Coward | more than 5 years ago | (#27461315)

but they may be held responsible for ads that are meant to deceive on that name rather than just sell similar products.

Re:Does this really matter? (1)

mysidia (191772) | more than 5 years ago | (#27462913)

Hrm.. Google is a commercial search engine, and users can enter their trademarked words into google and click "Search"; some results will be displayed.

So Google uses their marks even without AdSense.

The only way google could refrain from ever using their mark in commerce would be to reject, prevent, or block any user's search attempt, if a protected name was entered into the search box.

I doubt that very many businesses would prefer this as an alternative to allowing Google expected and ordinary uses of their mark, in a search engine (things like listing results and showing ads that are contextually-related to the subject, even comparable competing products, etc).

i just got off the toilet (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27460525)

i shit out an obama.

plop!

Re:i just got off the toilet (-1, Troll)

larry bagina (561269) | more than 5 years ago | (#27460683)

Ever take a shit then an hour later you need to take another shit? Now I'm not talking diarrhea, or squirrelly brown rope, I'm talking rugged manly shits. Well, I call the second one a "Biden".

Seen the results in action already. (5, Interesting)

palegray.net (1195047) | more than 5 years ago | (#27460587)

I use Google Adwords for targeted marketing campaigns. Try using any well-known trademark in a new campaign; as of a month ago, they started getting much more aggressive about filtering these out. You can't save an ad unit if it contains trademarked phrases. I don't have any problem with this, aside from cases where you're using the trademark with permission. At some point I'm probably going to wind up emailing the Adwords team about cases like this, offering written verification of license to use such terms.

Re:Seen the results in action already. (1)

Adrian Lopez (2615) | more than 5 years ago | (#27460729)

Using a competitor's trademark without permission in your own advertising is not necessarily illegal. If Google is blocking particular trademarks from being used, it's probably just a CYA measure.

Re:Seen the results in action already. (2, Insightful)

palegray.net (1195047) | more than 5 years ago | (#27460833)

True, but it does depend on the circumstances. With the huge number of Adwords campaigns being created on a daily basis, I really can't blame Google for covering their rears. It would be nice if they added some functionality to help automate the process of verifying permission to use a trademark, although offhand I don't know where to start on such a framework. In fact, that kinda sounds like a good idea for a startup, developing a system that would interface between separate organizations for such a purpose.

Re:Seen the results in action already. (1)

badasscat (563442) | more than 5 years ago | (#27463653)

I don't have any problem with this, aside from cases where you're using the trademark with permission.

Well, but a lot of people are. Google is not actually allowing anyone to use trademarked names at the moment, including advertisers who have distribution deals with those who own the trademark (which generally gives them the right to use the trademark in marketing - after all, what manufacturer wouldn't want their officially authorized dealers to advertise that they sell their items??). There are a lot of complaints about this on the Adwords support forum right now.

In fact, I'm not even sure the trademark owners themselves could get away with using their trademarks at the moment, given that Google's support is basically non-existent - they will allow it if you prove to them that you own the trademark, but good luck with that. Google sends an automated response to basically everybody that emails them for any reason these days.

I run a small web store selling Japanese clothes, and I made sure not to use any of the actual brands we carry in our Adwords keywords. That's another thing - if your account gets suspended because of this, good luck getting it unsuspended. Again, it's like they don't even have anybody working there right now.

Re:Seen the results in action already. (0)

Anonymous Coward | more than 5 years ago | (#27463753)

This is not true in general - you may have some ad campaigns where TM terms are blocked, but they are many others where there is no problem using the TM terms. It probably depends on whether the TM owner has already filed a trademark complaint with Google - see http://adwords.google.com/support/bin/static.py?page=guidelines.cs&answer=47165 [google.com] for Google's trademark policy.

Linux is ready! (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27460625)

I just installed linux, and I think it's finally ready for the desktop. Nice one.

Re:Linux is ready! (1)

CarpetShark (865376) | more than 5 years ago | (#27461063)

Look at the monitor. That's your actual desktop.

Re:Linux is ready! (1)

palegray.net (1195047) | more than 5 years ago | (#27462559)

I don't have a monitor, I have an LCD panel you insensitive clod! Although I am running Ubuntu on this laptop...

Re:Linux is ready! (1)

CarpetShark (865376) | more than 5 years ago | (#27465563)

I know you're joking, but for what it's worth, "monitor" is a generic term that applies to anything that lets you monitor information: displays, and even speakers.

Re:Linux is ready! (1)

palegray.net (1195047) | more than 5 years ago | (#27467527)

Yes, I was joking.

Is anybody surprised by this? (0, Insightful)

Anonymous Coward | more than 5 years ago | (#27460693)

Google ignores copyright, Google ignores trademarks, Google ignores human rights.

What doesn't Google ignore? your private data

mod me down, but you know I am right

"do no evil" is a nice platitude to trot out, but if the NSA promised to "do no evil" and AT&T promised to "do no evil", you'd be OK with them mining all of your info and trampling copyright at every turn?

Re:Is anybody surprised by this? (3, Insightful)

Darkness404 (1287218) | more than 5 years ago | (#27461085)

Um, tell me exactly how this is doing any evil. Because I can search for a trademark (and almost every ordinary word is trademarked to some degree), an ad to the side might advertise a competitors product. Tell me how, by searching for iTunes, and an ad comes up for Amazon MP3 is evil? Sure, arguably the censorship issue is evil, but this trademark thing, it isn't evil, not in the least.

Re:Is anybody surprised by this? (0)

palegray.net (1195047) | more than 5 years ago | (#27462569)

This is the best troll I've seen in a while. The AC part didn't give it away?

Let's make a comparison... (4, Insightful)

dada21 (163177) | more than 5 years ago | (#27460725)

I'm a consultant. People hire me to ask me questions about areas I am an expert in.

A few months ago, someone called me to ask about a product made by an obscure printer manufacturer, Mutoh. They had problems with some of their hardware and support. They asked me "What else is out there that you recommend?" Since I have expertise in this area, I told them I had some options for them. They hired me, and I offered them good advice.

I was a middle man between Customer A and a competitor to Mutoh (in their case, Mimaki). Should I be sued for Trademark infringement?

Google is a middle man between customers looking for information, and people offering answers to those questions. Mimaki has not paid me to dole out information, but in the case of a relatively free market, many "consultants" are actually commissioned by manufacturers to push their products. This isn't uncommon. If someone goes to an electronics store asking about an HP printer, the salesman MIGHT turn and offer an Epson because of a SPIF or other incentive to sell Epson over HP. It's the customer's responsibility to ask "Are you getting anything additional if I buy an Epson over an HP?"

Google isn't selling anyone's trademarked name, they're allowing two third parties to meet over what party A is looking for and party C might have information over to offer party A in their decision-making process.

If anything, this may actually HELP companies who have competitors buying their trademarked names as keyboards on Google AdWords. It offers reputation to the original company, and they can stake out a claim by promoting it.

Anyone who is afraid of their competition is only afraid because their competition is doing something better, cheaper or faster. Trying to shut down Google AdWords for letting 2 third parties interact over a keyword is going to make your market SMALLER, not bigger.

What a bunch of morons.

Re:Let's make a comparison... (1, Informative)

Anonymous Coward | more than 5 years ago | (#27461497)

I'm not sure that it's fear of competition.

I have a client who's closes competitor has taken out google ads using my clients trademarked name as their keywords. So when you search by that company name the top thing on the page is their competitions ad followed by my client who appears at the top of the search list.

My client then has to take out ads as well just to keep customers who were already looking for them specifically. it turns into a bidding war between my client and his competitor and the only winner in this scenario is is google getting money by selling ads for the trademark.

Re:Let's make a comparison... (1)

Hognoxious (631665) | more than 5 years ago | (#27473919)

Are the ads clearly distinguishable from the rest of the content, i.e the results? When I run a Google search they are.

Re:Let's make a comparison... (2, Informative)

StormReaver (59959) | more than 5 years ago | (#27461561)

You could look at it a different way, as well. If someone asks you, "What Mutoh printers do you have to replace this one?", but you then point them to the HP printers and say, "these."

By itself, it's not a problem. But what if HP paid you to point customers to their printers anytime someone asked about Mutoh printers? That is the essence of what Google is doing here: being paid by an advertiser to interject its products into the search results for competing products.

Google should be bitch-slapped for this, everyone at Google involved with this should have to write their "don't be evil" slogan 5,000 times, and turn it into the teacher before the end of the day.

Re:Let's make a comparison... (3, Insightful)

mysidia (191772) | more than 5 years ago | (#27462953)

In this case, the name's not important. The trademark isn't the significant thing here.

HP could have paid them to point out the HP printers any time a customer asks about any type of printer at all, no matter what name.

And more importantly, things are properly labelled. They aren't lying to the customer and saying the HPs are Mutoh printers, that would be confusing.

HP could even pay them to stack up the HP printer boxes on the front of all the shelves, so that to find a Mutoh printer, the customer would have to dig behind the HP printer boxes.

This may be frustrating for Mutoh (and the customer), but it's not trademark that is at issue here, it's product placement deals in general.

Re:Let's make a comparison... (1)

AceofSpades19 (1107875) | more than 5 years ago | (#27463367)

Google should be bitch-slapped for this, everyone at Google involved with this should have to write their "don't be evil" slogan 5,000 times, and turn it into the teacher before the end of the day.

because this is obviously worse thing any company has done. A company the size of Google is not going to be perfect, I doubt the people at Google went out of their way to break these laws like other companies

Re:Let's make a comparison... (1)

Fearless96 (1059568) | more than 5 years ago | (#27464729)

But what if HP paid you to point customers to their printers anytime someone asked about Mutoh printers?

This isn't a problem if ads and search results are separate. The ads come from money. You already know this. The search results /should/ be the output of the neutral search engine algorithm. So, there is no problem until the search results are purposely skewed by advertising dollars.

Re:Let's make a comparison... (2, Interesting)

AgNO3 (878843) | more than 5 years ago | (#27461777)

That is such a flawed argument. Its more like Mc Donalds running an ad saying there is a Burger King at such and such address but their isn't a Burger King there is a Mc D's. Its not up to Google to decide to help a company that doesn't want its help. Company B doesn't have the right to use Company A's built and paid for reputation for their gain.

Re:Let's make a comparison... (2, Insightful)

mysidia (191772) | more than 5 years ago | (#27462979)

That is such a flawed argument. Its more like Mc Donalds running an ad saying there is a Burger King at such and such address but their isn't a Burger King there is a Mc D's

No, that would be lying. They aren't lying, the ads are in general clearly labelled, if you click the ad, you KNOW you aren't going to the site of the product you originally search for (They CONVINCED you to investigate an alternative), they are just shown when you look for a competitor name.

It's like if you go to a restaurant and ask for a Coca Cola, but they have an exclusivity deal with Pepsi, so they offer to sell you a Pepsi instead. The customer still has a choice, and it is not a confusing one; the competitor's name is used to "find" the customer's search, but is not displayed to the customer in a manner that would be confusing.

And you don't have to go there, or click on the link to see that the sponsored listing IS a different product from a competitor.

This is like having a free directions service, where you call 800#s for directions to a place, you ask the person for directions to McDonalds.

The operator executes a search, and tells you some of the places they can give you directions to.

Because Burger King pays them for placement they first tell you, "If you press *1*, I can give you the directions to Burger King on Maple street"

If you press *2*, I can give you the directions to the McDonalds on Huckleberry lane.

etc...

There is absolutely no customer confusion here. If you choose to Press 1, it's NOT because they used the word 'McDonalds' to convice you by confusion or deception.

They analyzed the choice you made and offered you an alternative based on their deals in place.

Re:Let's make a comparison... (2, Insightful)

Actually, I do RTFA (1058596) | more than 5 years ago | (#27462295)

f anything, this may actually HELP companies who have competitors buying their trademarked names as keyboards on Google AdWords. It offers reputation to the original company, and they can stake out a claim by promoting it.

They already have protection for their reputation in trademark law. Trademark law, just like copyright, needs to stop having Google and non-Google versions.

Anyone who is afraid of their competition is only afraid because their competition is doing something better, cheaper or faster.

What crap. ADM motto: The competition is our friend, the customer is our enemy.

i just got off the toilet (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27460727)

i shit out an obama again!

plop!

EP? (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27461263)

From nOw On or [goat.cx]

Help me I'm being misled! (1)

fireheadca (853580) | more than 5 years ago | (#27462683)

From the PDF:

"Rescuecom alleges, however, that a user might easily be misled to believe that
the advertisements which appear on the screen are in fact part of the relevance-based search
result and that the appearance of a competitor's ad and link in response to a searcher's search for Rescuecom is likely to cause trademark confusion as to affiliation, origin, sponsorship, or approval of service."

When I did a search for 'Rescuecom' my adsense suggestion was 'iyogi.ca' with the caption 'Get computer service better than rescuecom'.

However, Google is providing data on a subset of keywords based on your inquiry - Just like meta-tags in webpages. Anyone can choose their meta's and adopt their page to be listed higher in the ranks. Adsense is just the paid ('Sponsored links') portion of the page.

There is no bias.

And Rescuecom apparently has a low perception of its clientbase.

Real World Example (1)

AftanGustur (7715) | more than 5 years ago | (#27463815)

When I go to the supermarket here in France and buy Nestle baby food for my little boy, the supermarket system prints and hands me 1 discount tickets for "Bledina baby food" for each Nestle product I bought.
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