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Lawsuit Says Google's Sale of Keywords Is Illegal

Soulskill posted more than 5 years ago | from the search-is-mightier-than-the-sword dept.

The Courts 247

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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Anonymous Coward | more than 5 years ago | (#27978331)

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is it infringement? (1, Insightful)

computerchimp (994187) | more than 5 years ago | (#27978351)

Selling a T-Shirt with McDonalds name on it and selling advertising with McDonalds name on it.

When they are both done without permission is there a difference?

Re:is it infringement? (1, Insightful)

Anonymous Coward | more than 5 years ago | (#27978385)

Selling a T-Shirt with McDonalds name on it and selling advertising with McDonalds name on it.

When they are both done without permission is there a difference?

Neither one of those is what Google did.

Re:is it infringement? (5, Funny)

Anonymous Coward | more than 5 years ago | (#27978425)

What google did is more akin to spraying a car with McDonalds analogies, then leaving the key in the ignition.
Next to an open wifi point.

Re:is it infringement? (5, Insightful)

gnapster (1401889) | more than 5 years ago | (#27978469)

What Google did is more like walking around in front of a Ford dealership while wearing a sandwich board advertising Chevrolet.

Re:is it infringement? (2, Funny)

Anonymous Coward | more than 5 years ago | (#27978501)

What Google did is like accepting money from Ford to hire a goon squad sit outside a GM dealership and beat the shit out of any potential customers.

Re:is it infringement? (0)

Ginger Unicorn (952287) | more than 5 years ago | (#27978583)

So let me get this straight, you think that if i search for "firepond" on google, i'll be threatened and intimidated into not buying their software? What a pathetically ill thought-out analogy.

Re:is it infringement? (1)

grumbel (592662) | more than 5 years ago | (#27978659)

If Google would actually suppress search results of competition you might have a point, but that doesn't seem to be the case here. As far as I understand it, its just Google selling targeted advertisment space. Nothing wrong with that. How is it illegal for Ford to place an advertisment next to a GM dealership?

Re:is it infringement? (5, Insightful)

Allicorn (175921) | more than 5 years ago | (#27979005)

Placing a physical ad in proximity to a plot of land belonging to a competitor does not specifically depend on the exploitation of the competitor's trademark - a mark which they have to pay for and which supposedly affords them a degree of legal protection versus others exploiting it to their benefit.

Placing a web ad effectively "on" a competitor's trademark does - it could be argued (and seems likely to be the thrust of the lawsuit) - does mean that the ad's existence entirely depends on that trademark. The party selling the keyword is - again it could be argued - effectively selling the misuse of competitor's protected trademarks - definitely a no-no.

The fact that earlier one-to-one cases with Google vs large corporates resulted in settlements would seem to suggest to (IANAL) me that Google themselves may be concerned that there could be a case to answer here.

Yes it DOES involve trademark (0)

Anonymous Coward | more than 5 years ago | (#27979395)

since the competitor land will have the competitor's trademarked name somewhere on the site, else you wouldn't know it belonged to the competitor, would you.

Re:is it infringement? (5, Insightful)

multisync (218450) | more than 5 years ago | (#27979135)

How is it illegal for Ford to place an advertisment next to a GM dealership?

That's about the best analogy I've read so far. There's a car angle and everything.

Google is simply firing ads at users based on the search string they entered. If they wanted to give Fold ads to people who searched for 'peanut butter' that's their business.

How is Google supposed to know a word is violating someone's trademark? They're not all as obvious as Xerox, or IBM. Is Google expected to do a trademark search on every word and phrase their advertising customers want to purchase? That's going to get awfully expensive.

Or should the customer have to sign an agreement stating that none of their adsense words violate anyone's trademark anywhere, and provide some sort of notification/counter-notification system? I guess the customer should be doing a trademark search anyway, if they are going to compete in the international marketplace.

Why isn't this woman suing the company who purchased her name as an adsense word? If anyone has violated her trademark, it's them.

Here's another analogy, if I bought an ad in a national magazine advertising my company, who's name happens to be trademarked by another another company in the same industry that I may or may not have known about, is that company going to sue the magazine that ran the ad, or me? Can the magazine be responsible for doing a trademark search on every ad they run?

How about other IP laws? Is Google responsible because I bought an adsense word to advertise my new software that violates someone else's software patent? Or violates the GPL?

Is Google responsible because I advertised a site with a bunch of bit torrent trackers to illegal copies of Wolverine?

It will be interesting to see where this one goes.

Re:is it infringement? (0)

Anonymous Coward | more than 5 years ago | (#27979365)

How is Google supposed to know a word is violating someone's trademark?

They should hire someone to research these things.

They're not all as obvious as Xerox, or IBM.

So you're saying only large companies deserve trademark protection?

Is Google expected to do a trademark search on every word and phrase their advertising customers want to purchase?

YES That is why we have trademarks. The IPO (UK trademark office) has a searchable database and I'd bet the US equivalent does too.

Re:is it infringement? (4, Interesting)

nametaken (610866) | more than 5 years ago | (#27978683)

Yeah, except you'd have to expand that to "Google owns the building the dealership is in".

People can't get around Google today. Or at least, nobody wants to. Google owns the search engine, google profits from the advertisers, google provides a place for people to questionably violate trademark for profit, google profits from this questionable behavior.

It'll be interesting to see what happens.

Re:is it infringement? (2, Interesting)

MoonBuggy (611105) | more than 5 years ago | (#27978821)

Fair point, but I'm still inclined to believe Google is in the right here. Apart from anything else, the actual non-sponsored listings are not affected, and they're free; if I search for American Airlines the first real result is their website, at no cost to them whatsoever. The only cost is if a company demands to be top in the sponsored listings as well, and to block out the suggestion of their competitors' products.

To warp a tenuous analogy even further: Google is like a department store. The customer enters and asks an assistant to direct them to the Armani suits. The assistant immediately shows them to the Armani section and while doing so also hands them a flyer suggesting they may also like to look at Gucci or Prada.

Re:is it infringement? (0)

Anarchduke (1551707) | more than 5 years ago | (#27979191)

No that is incorrect. To continue in the analogy of a department store, I go into a department store and ask an associate to direct me to Armani suits. The associate shows me Gucci because Gucci paid the department store to misdirect anyone looking for Armani to instead be shown Gucci.

The associate says, here is what you are searching for. Oh, and if you want Armani, those suits are somewhere on this same floor. The associate, by not accurately showing you the brand name you asked for, is acting in bad faith. It would be acceptable for that associate to show the Armani suits, then say here are the Gucci suits, as you might like them also, but downright misdirecting a person's search is an act of bad faith on Google's part.

Google's service is providing information to searchers. The good faith assumption here is that Google will provide accurate information, and searching for a registered trademark should provide a link to the trademark holder, not its competitor.

Re:is it infringement? (4, Insightful)

MoonBuggy (611105) | more than 5 years ago | (#27979243)

But Google does accurately provide the link to the brand you asked for. It's almost invariably the top link of the actual search results, which are freely included and not interfered with by Adsense payments. In fact, for any moderately popular brand there will be pages upon pages filled entirely with various suppliers of precisely the trademarked brand name you searched for.

The search results - the 'true' product of your search, include only the keyword Armani. To me this is akin to being placed in the Armani section of the hypothetical store. Surrounding the search results, but separate from them, are the context adverts - these point to other brands you are likely to be interested in. Akin to flyers, or posters on the wall, in my opinion.

I think the key issue is that they do not redirect or alter the main body of your search. Only the data presented alongside, related to but not part of the search is for sale.

Re:is it infringement? (3, Insightful)

_KiTA_ (241027) | more than 5 years ago | (#27978685)

What Google did is more like walking around in front of a Ford dealership while wearing a sandwich board advertising Chevrolet.

Which is legal. Public sidewalks, and all that. A local pizza joint has a guy out on the street corner with signs telling them to stop on by and get a pizza from a locally owned mom and pop pizza joint.

Mind you, the street corner he stands on is about 3 blocks away from said joint, and coincidentally right next to a local Pizza Hut...

And you're forgetting one important thing, which makes it even more legal.

What Google did is more like walking around in their own business in front of a Ford salesman that they invited into their business while wearing a sandwich board advertising Chevrolet.

www.Google.com is not public property. We go to their private servers and bring them our business because they have the best search resource available to us, and because they are mostly neutral.

But they don't have to be. They are, but they are not legally required to be. And no one would ever accuse them of being neutral on the "Sponsored links" sections.

Re:is it infringement? (1)

gnapster (1401889) | more than 5 years ago | (#27979069)

Oh, it is totally legal. I was not trying to demonize Google in the least; just trying to come up with a good car analogy.

Google is providing a public service and funding it with advertising. In some situations, the ads could even be something the searcher wants. The only place that Spangenberg can expect to expunge competitors is on her own web site. (This crossed my mind within minutes of posting the above... :c/ )

As I Google, presently, I find it very interesting that a query for FirePond [google.co.uk] produces no ads. I wonder if Google supresses those sponsored links now because of the threat of the lawsuit. I wonder if FPX asked nicely, first...

Re:is it infringement? (1)

hackstraw (262471) | more than 5 years ago | (#27979095)

www.Google.com is not public property. We go to their private servers and bring them our business because they have the best search resource available to us, and because they are mostly neutral.

But they don't have to be. They are, but they are not legally required to be. And no one would ever accuse them of being neutral on the "Sponsored links" sections.

Exactly. Everyone who remembers back when search technology was more primitive and search engines honored the <meta> tag with keywords and every fledgling software company would put the big guys products in the keywords in order to get traffic from search engines. In fact, the top hits on Google for html meta tag [google.com] talks about what these are and how they don't work anymore.

If targeted advertising and direct competition by name was a trademark violation, I believe that Microsoft would have put Apple out of business by now.

Re:is it infringement? (0)

Anonymous Coward | more than 5 years ago | (#27978993)

There isn't a problem with the Google-customer interaction. You can tell people, who are interested in one product, that they might also be interested in another product. The problem is that the value of the ad space results from the association with the trademark. Selling that ad space could be considered a trademark violation. It's like Google putting the trademark on their product.

Re:is it infringement? (0)

Anonymous Coward | more than 5 years ago | (#27978509)

No, if Google were selling shirts, and you came in and said "Hey... have any McDonalds shirts?" and they said "We have these Burger King shirts" is that a violation of McDonalds' trademark?

Re:is it infringement? (4, Insightful)

OrangeTide (124937) | more than 5 years ago | (#27978563)

First, your analogy does not apply here. And yes, if I sell T-shirts with a trademark on them without permission(McDonalds, Nike, NHL team names, whatever) then I am opening myself up to a very simple trademark case, one that I will lose badly (if I don't settle, which is the wise thing to do). I can mention trademark names as part of a discussion, but just sticking them on a T-shirt would be a problem.
Now if you have a T-shirt that says "McDonalds sucks" and/or a picture of Ronald being bitch-slapped by Hamburglar then that would be protected as free speech because it is parody. They might come after you to surpress it, but they likely won't win. But most people will settle anyways because they can't afford a legal siege, even if they are right.

Re:is it infringement? (1)

SuperCharlie (1068072) | more than 5 years ago | (#27979037)

But most people will settle anyways because they can't afford a legal siege, even if they are right.

This is what I have a problem with.. justice by the dollar..

Re:is it infringement? (1)

stephanruby (542433) | more than 5 years ago | (#27978807)

Selling a T-Shirt with McDonalds name on it and selling advertising with McDonalds name on it.

You must be somewhere in Europe. In the US, you're allowed to mention your competitors by name in your advertisements (as long as you're not impersonating them). What you're not allowed to do however is to list yourself in the white pages under your competitor's registered name (and yes, I am indeed mixing apples and oranges by using this analogy, I just couldn't think of a better one).

And let's assume that a competitor does try to impersonate you, or does try to add confusion when people search specifically for your mark, you would probably both sue your competitor in question and try to sue (or at least stop) the publisher of the white pages. That being said, I understand why they're just suing google in this case (it's going to be a lot easier to just focus on google, so that others can join in on the fight).

PS: I'm not a lawyer, I've just seen lawyers played by actors on TV.

Re:is it infringement? (1)

hclewk (1248568) | more than 5 years ago | (#27979065)

But no one is being impersonated. Is it illegal for a business to place an advertisement next to a competitor's advertisement in the yellowpages? No.

Re:is it infringement? (1)

multisync (218450) | more than 5 years ago | (#27979197)

But no one is being impersonated. Is it illegal for a business to place an advertisement next to a competitor's advertisement in the yellowpages? No.

To expand on your Yellowpages angle, if the Yellow Pages people put "Xerox" in the index, instead of "Copiers," and it pointed it at a page with Xerox, Cannon and Brother copier ads, they would be diluting the Xerox's trademark and potentially guilty of infringement.

So what's the difference? I think it's that Google isn't choosing the word that will trigger its customer's ad, the way the Yellow Pages do. So it's Google's customer who is potentially infringing, and this woman should be suing them.

Re:is it infringement? (1)

gnapster (1401889) | more than 5 years ago | (#27979215)

Careful, there. In the phone book, a company does not pay for their advertisement to be placed "next to a competitor's advertisement." When a company buys an ad in the Yellow Pages, they buy it for a particular category, which will be the same category as their competitor. If the ads are next to one another, it is because it was convenient for the page layout, or because of alphabetical ordering, or some other such serendipity.

Apropos to this, Spangenberg and her company would not have a leg to stand on if they sued Open Directory for having a bunch of other companies in the same listing [dmoz.org] , because those results are based on categories which are not trademarks. Google's sponsored links seem to be triggered by the trademarked name; that is the bone they have to pick.

Re:is it infringement? (1)

Thing 1 (178996) | more than 5 years ago | (#27979103)

[...] and yes, I am indeed mixing apples and oranges [...]

Mmmmm, fruit salad!

Better analogy (1)

Roger W Moore (538166) | more than 5 years ago | (#27979031)

Someone comes up to you on the street and asks you where the nearest McDonald's is and you reply "There is a Wendy's around the corner". Have you committed trademark infringement? The only difference between this and Google is that Google makes money from doing this which might be an important difference.

Re:is it infringement? (1)

sjames (1099) | more than 5 years ago | (#27979415)

What Google is doing is more akin to the phone company letting a John's Ford dealership have an entry with their phone number in the Name of Joe's Chevrolet that comes before the actual entry for Joe's Chevrolet.

Been there done that. . . (1)

MistaE (776169) | more than 5 years ago | (#27978367)

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't sponsoring these advertisements of competitors.

What about dilution? I see a hard time because the majority of the trademark use is behind the scenes unknown to the user. Unless by typing in one trademark and getting another via sponsored links that's considered dilution by blurring, which I suppose is a possibility.

Just some random thoughts aloud, but I don't think this suit is going pass through. If it does, we might get some interesting new direct case law on the subject though.

Re:Been there done that. . . (1)

American Terrorist (1494195) | more than 5 years ago | (#27978543)

/agree, I don't think FirePond can prove harm. If I type in a company's name, and it's the first search result I see, how does it hurt to have that company's competitors websites among the sponsored links? If I want to go to the Firepond website I will, if I'm looking for their competitors then this is actually a good thing for me.

Re:Been there done that. . . (0)

Anonymous Coward | more than 5 years ago | (#27978547)

Google's use is obviously commercial. They are SELLING the trademarked word.

Well so much for .... (0)

3seas (184403) | more than 5 years ago | (#27978383)

Do no evil....

Honestly, search using google is.... well teh older a search engine gets the more difficult it is to get the information you seek and quite frankly, the more advertising you have to wade through to get it....if you can find it what you are looking for amoung the advertising...

Maybe we need a sub search engine....

Geico banned keyword (1)

DNS-and-BIND (461968) | more than 5 years ago | (#27978397)

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.

Re:Geico banned keyword (1, Funny)

Anonymous Coward | more than 5 years ago | (#27978481)

Well, I'm alittle puzzled as to how this could possibly be infringement of any actual laws of google's part. I can see myself being alittle pissed off about it if I was on the receiving end, but that doesn't mean google shouldn't be allowed do it. Alot of intellectual property law is complete bullshit, as alot of us know.

Re:Geico banned keyword (1)

corbettw (214229) | more than 5 years ago | (#27978587)

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 (3, Insightful)

Thing 1 (178996) | more than 5 years ago | (#27979025)

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.

Re:Geico banned keyword (1)

98 Rezz (912897) | more than 5 years ago | (#27979171)

Fun, half way down the page.

Geico sues Google, Overture over trademarks [cnet.com] - CNET News The auto insurance company is taking the search engines to court for allegedly violating its trademarks by selling them as keywords in their advertising ...

Google wins in trademark suit with Geico [cnet.com] - CNET News Dec 15, 2004 ... Judge rules that the search giant's use of trademarks in keyword advertising is legal. A CNET article by Stefanie Olsen, Staff Writer, ...

These suits against Google are losers (5, Insightful)

Absolut187 (816431) | more than 5 years ago | (#27978417)

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.
But Google is not confusing anyone.
If Google was displaying the word "FirePond" as a hyperlink to a competitor, THAT would be closer to trademark infringement because there would at least be "initial interest confusion" (where a consumer ends up at the wrong website).
But Google isn't doing that. Google is simply promoting competition by displaying competitor's ads when you search for a trademark. The sponsored links, as everyone knows, are displayed in a separate section from the "organic" links.
That doesn't confuse anyone, it just gives them more options. Obviously, nobody likes it when you give their customers other options. But it's not trademark infringement.

Re:These suits against Google are losers (3, Insightful)

liquidpele (663430) | more than 5 years ago | (#27978761)

Exactly. Google isn't taking money to put competitors higher in the search results, or to even lower Firepond in the search results. They are taking money to pop up specific advertisements when people search for a certain term. A precedent that says they can't sell advertisements for any trademark word is retarded... they couldn't sell them for Kleenex, movie names, song names, website names, etc etc.... basically every single useful search word is probably trademarked somewhere.

Trademark isn't really about sources anymore (4, Informative)

langelgjm (860756) | more than 5 years ago | (#27978811)

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.

Re:Trademark isn't really about sources anymore (1)

Philip_the_physicist (1536015) | more than 5 years ago | (#27978905)

Doesn't the US have the "moron in a hurry" standard for deciding if a trademark is infringing? That standard means that if a moron in a hurry would mistake your link/packaging/label/name for a trademarked one in the same field, then you are infringing. Of course, given the amazing levels of stupidity which the universe can come up with, that is a fairly unpredictable standard.

Re:Trademark isn't really about sources anymore (1)

langelgjm (860756) | more than 5 years ago | (#27978929)

Hm, I haven't heard of it, but that doesn't mean some court somewhere hasn't applied it. In most of the cases I've read, though, there has been a pretty detailed evaluation of whether a mark is infringing or not. One of the most well known cases involves what are now called the Sleekcraft factors. [wikipedia.org]

Re:Trademark isn't really about sources anymore (3, Insightful)

drinkypoo (153816) | more than 5 years ago | (#27979019)

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:Trademark isn't really about sources anymore (2, Insightful)

langelgjm (860756) | more than 5 years ago | (#27979165)

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 won't disagree with them, and convince a court that this behavior is infringing. Lots of large companies have good lawyers, and still have to deal with lawsuits. If it were just a matter of looking at the law and tailoring your action accordingly, things would be a lot less complex.

Re:Trademark isn't really about sources anymore (0)

Anonymous Coward | more than 5 years ago | (#27979345)

Seems like there must be some body of trademark law with respect to newspapers. Surely someone has sued a newspaper over advertisements that the paper ran (but did not design). Does anyone know anything about that?

There are a lot of things I don't like about this suit. One is that there is no question of consumer confusion (I'm not going to be confused if I google Coke but see a sponsored link for Pepsi). Another is that Google isn't making the ad - the only link between the trademark and Google is "selling" the keyword. Third is free speech rights - if someone asks me, "do I like Coke?" I can answer "sure, and I also like Pepsi." This lawsuit seems to claim that I don't have the right to mention the other product unless specifically asked.

But I suppose newspapers must have run into this.

Re:These suits against Google are losers (1)

noidentity (188756) | more than 5 years ago | (#27978907)

I agree with the company. I think nobody should be allowed to mention Fire**** products anywhere (not even product websites, since other products are also listed there), nor should Google be allowed to index that term. That way the only mention of that product will be on the company's website, and we can let them wither into obscurity.

Re:These suits against Google are losers (2, Interesting)

StormReaver (59959) | more than 5 years ago | (#27978957)

> 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 is so fraught with danger that most companies avoid it even when it is legal to do so. That's why commercials doing comparative advertising say things like, "the leading national brand" rather than naming the brand. They do so not because they're afraid of giving the competition free advertising (the leading national brand is already well known), but because they're afraid of getting sued for trademark infringement.

This is something for which Google deserves to get slapped hard.

Re:These suits against Google are losers (0)

Anonymous Coward | more than 5 years ago | (#27979015)

Perhaps.
It the trademarked company that is the subject of the search is buried on page 2069 of the results, ranked behind fire ants and fire pants, then there would certainly be a case. I suspect there is still a case if they adverts are clearly competitors and the subject of search company is not top ranked in the results.

I'd be posting from my account but.../. managed to forget my password. Maybe the /. crew is the same crew that couldn't get SPRINT's web site back up for two days. It was down. Just came up. Not newsworthy on /. Just like the big bug that cisco doesn't reveal until a customer gets bitten in the ass...hmmm 2+2 = sprint sues cisco for billions... you read it here first.

Re:These suits against Google are losers (0)

Anonymous Coward | more than 5 years ago | (#27979085)

You are only partially getting it. Google is selling the keyword FirePond to a competitor and then showing a competitor's ad. If Google maintained its own database of companies and their competitors, it would not be an issue.

Google is selling a trademarked word that they do not own to a business that does not own the trademark either. While I think the lawsuit is BS, most of you prattling along about it fail to realize they have a good shot of winning this one as it IS questionable on Google.

Re:These suits against Google are losers (1)

JerryQ (923802) | more than 5 years ago | (#27979091)

"The sponsored links, as everyone knows, are displayed in a separate section from the "organic" links"

Slashdotters may know, but a LOT of people do not recognise the difference, especially when the sponsored links are above the listing rather than to the right...

its not right (1)

FudRucker (866063) | more than 5 years ago | (#27978453)

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...

Re:its not right (1)

rhsanborn (773855) | more than 5 years ago | (#27978695)

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 (3, Insightful)

Aladrin (926209) | more than 5 years ago | (#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.

smacks of a protection racket?! (1)

Cyko_01 (1092499) | more than 5 years ago | (#27978477)

the correct quote from the article is "...smells of a protection racket" - Which still doesn't make a whole lot of sense

Shocking. (4, Insightful)

moogied (1175879) | more than 5 years ago | (#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.

Genius (1)

Krneki (1192201) | more than 5 years ago | (#27978577)

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 if they win (1)

viralMeme (1461143) | more than 5 years ago | (#27978605)

What do they think it will happen if they win?

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

Re:what if they win (1)

MikeDX (560598) | more than 5 years ago | (#27978645)

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!

Yeah... (0)

Anonymous Coward | more than 5 years ago | (#27978975)

and Firepond would slap them with an Anti-Trust complaint, and they'd win.

Re:Genius (1)

perryizgr8 (1370173) | more than 5 years ago | (#27978701)

yeah, google may even remove their SEARCH result. then at least 50% of their potential customers will never FIND them

Re:Genius (0)

Anonymous Coward | more than 5 years ago | (#27978857)

This is why Google will be able to expand their data mining into what could easily be called spyware and nobody will call them on it. Those who do try to give it a correct label will find themselves "accidentally" deleted from Google's index, suffer a drastic drop in clicks to their sites and make their message all the harder for people to see.....all a complete coincidence of course. Right now they skirt the line on several areas, have found resistance in some areas and have gotten away with others because the trade-off for consumers is a decent product.

I'd guess that Google would rewrite the law to delete the concept of "privacy" if they thought they could get away with it. Anywhere their greasy paws can't reach because of some privacy laws thwarts their attempts to gather more data to mine, build a more accurate profile on you and target you with more accurate adverts.

Re:Genius (0)

Anonymous Coward | more than 5 years ago | (#27979051)

If Google were to establish a policy of delisting any website associated with a lawsuit against them as some form of "Not commenting on pending litigation", I wonder how fast the rate of lawsuits like this would plummet.

Re:Genius (1)

Will.Woodhull (1038600) | more than 5 years ago | (#27979403)

Win or lose legally, the 'FirePond' brand has suddenly gotten worldwide attention. That Audrey Spangenberg grrl-- she's one heck of a savvy entrepreneur:

  1. File class action lawsuit against Google with name of company prominent in the heading of the suit
  2. Leak the "story" to slashdot
  3. ....? Oh wait-- there is no step here. Just a short wait
  4. Profit!!

Google is certainly within the law in showing advertising for competing products next to search results that include a targeted product. This is also good for the consumer.

That said, the courts maybe do have a role in determining whether Google can auction off the most prominent ad position to the highest bidder in this kind of situation. It seems to me that the fair thing to do would be to use the same ranking system in the advertising section as Google uses in the search section, so that the most appropriate ads according to the user's search criteria are on top. So if Google is selling off the top spots to the highest bidders (through bidding on keywords), it can be argued that it is stacking the deck for monetary gain in a deceitful way.

But then what do I know. I have trained my eyes to skip over the ad section of Google responses. As I bet most Google users have done.

Google results on FirePond (0)

viralMeme (1461143) | more than 5 years ago | (#27978589)

"When Audrey Spangenberg typed the name of her small software company into Google and saw the ads of competitors .. she was furious"

I just typed it in and got no sponsored links. imnal but I do think your competitors hijacking your own trademarked name should be banned.
-

imnal == I Am Not a Lawyer

Re:Google results on FirePond (1)

DahGhostfacedFiddlah (470393) | more than 5 years ago | (#27978759)

I can kind of agree with FirePond - since it's obvious someone's looking specifically for this company.

But there are plenty of trademarked names that are less clearcut. "Windows", for example - how would Google be able to weed out the MS competitors from the genuine windows manufacturers that want their name out there?

Hell, what if there's some tourist attraction called "The Fire Pond" out there?

I absolutely think it's slimy to buy up advertising for your competitor's brand name, but I'm also absolutely convinced there's no technical way to prevent it that wouldn't cause a whole host of other problems.

Re:Google results on FirePond (0)

Anonymous Coward | more than 5 years ago | (#27979359)

Dude, picking the first letter of each word to form an acronym isn't hard. How can you mess that up?

It's all about the consumer's confusion (1)

Temujin_12 (832986) | more than 5 years ago | (#27978593)

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 big companies going after people over trademark infringement (Mike Rowe Soft anyone?). But these cases are often settled out of court so they could just be scare tactics since the big company knows they couldn't win in court other than to out lawyer the defendant.

Re:It's all about the consumer's confusion (1)

rhsanborn (773855) | more than 5 years ago | (#27978731)

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.... (1)

Darkness404 (1287218) | more than 5 years ago | (#27978599)

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.

no it's not (1)

viralMeme (1461143) | more than 5 years ago | (#27978637)

"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 :)

Re:no it's not (1)

Darkness404 (1287218) | more than 5 years ago | (#27978727)

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.

Re:no it's not (1)

noidentity (188756) | more than 5 years ago | (#27978941)

No, if we must make an analogy, it's like asking for a Sony DVD player and having the sales person show you some Sony units, and also mentioning that they also have other brands of compatible DVD players.

misuse of trademarks (1, Redundant)

speedtux (1307149) | more than 5 years ago | (#27978619)

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 be misled into buying SmokeLake when they intend to buy FirePond.

Heh... (2, Interesting)

IronMagnus (777535) | more than 5 years ago | (#27978657)

http://www.bizjournals.com/twincities/stories/2009/02/16/daily23.html [bizjournals.com] 4th or 5th result when I searched for 'FirePond'

Re:Heh... (1)

drinkypoo (153816) | more than 5 years ago | (#27978699)

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

Re:Heh... (1)

Tony Hoyle (11698) | more than 5 years ago | (#27978837)

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.

Are you Google cultists? (0, Flamebait)

ford-mays (1555901) | more than 5 years ago | (#27978677)

It's ridiculous how far the worship of Google goes here on /. We are talking about a huge company that's getting extra money to perform its search engine service poorly (if I'm searching for 'Pepsi', I want 'Pepsi' results, not 'Coca-cola'. I don't mind if you give me additional results about 'Coca-cola' because it's relevant, related or similar, but DO NOT replace my expected 'Pepsi' results just because The Coca Cola Company is giving you money, this is absurd).

Re:Are you Google cultists? (1)

Darkness404 (1287218) | more than 5 years ago | (#27978767)

But its not, the links are clearly sponsored links. This would be outrageous if the top result (not the sponsored link) was for Coke, but its not. I'd rather Google do that for advertising which A) Is actually relevant B) is clean looking C) doesn't involve a dancing flash monkey screaming YOU WON A FREE* PSP!.

Re:Are you Google cultists? (2, Informative)

FlyingBishop (1293238) | more than 5 years ago | (#27978897)

How do you know you want Pepsi? Maybe you've just never tasted Coke before.

Sometimes, when I do a Google search, I'm looking for a website I've already visited. In that case, this advertising is pointless.

Most of the time, I'm doing a Google search to find a solution to a problem. I need a widget, and I go searching for ACME, since I know they're a fine provider of widgets. I do not, however, know a lot about widgets. So I would be quite pleased to see a variety of results about different widgets.

Furthermore, I don't usually read the supported ads except in the case where I might be looking for a few products to compare.

Re:Are you Google cultists? (1)

ford-mays (1555901) | more than 5 years ago | (#27978983)

So I assume you need to taste every soda out there before you can consider yourself educated enough to research about one in special? What about juice, I hear it's better for your health than soda, so why not skip Pepsi results entirely and give people Ades results?

That makes absolutely no sense. Perhaps I'm not even interested in drinking Pepsi, but I just want to see what their website looks like to offer my webdesign services. Or perhaps I just want to find contact info to schedule a factory field trip for a class. Ultimately, it's not up to the search engine deciding why I'm searching for something.

If I want to do websearch for "Stephen Hawkings" and Google decides to give me first results for "Albert Einstein" just because it thinks the latter is a much cooler scientist, they're performing sub-optimally deliberately. If the reason is that they're getting money for it, it's still deliberate sub-optimal performance.

Their Real problem... (3, Funny)

zippthorne (748122) | more than 5 years ago | (#27978703)

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??

Re:Their Real problem... (1, Insightful)

DerekLyons (302214) | more than 5 years ago | (#27978901)

If you don't understand the language, maybe you aren't the target market.

Re:Their Real problem... (1)

jo42 (227475) | more than 5 years ago | (#27979255)

Something only an MBA (Master Bullsh*t Artist) would want.

Re:Their Real problem... (2, Funny)

ronhughes (701679) | more than 5 years ago | (#27979265)

Stuff to make your product more.

Duplicate names and the world at large... (1)

blahplusplus (757119) | more than 5 years ago | (#27978839)

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 the fact society has changed.

The logic doesn't make sense (0)

Anonymous Coward | more than 5 years ago | (#27978841)

What's Google supposed to do if I search for comparisons?

If, for instance, I search for "FirePond Sterling Commerce" (Sterling Commerce is a FirePond competitor), should Google display neither company's ads? Both?

Compare to... (1)

arose (644256) | more than 5 years ago | (#27978863)

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!

It's a catch 22... (1)

SuperCharlie (1068072) | more than 5 years ago | (#27978867)

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.

My take on "What Google Did" (1, Insightful)

AndGodSed (968378) | more than 5 years ago | (#27978883)

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 that it is in essence putting another IP address behind your company/domain name.

And in fact: Google "did" nothing - they offer a product that some competitor of this company has found a way to abuse.

That they allow such practices bears study though - I am unsure if the laws of the world has caught up with this business model though.

I would suggest that they notify the owner of the trademark name that someone is interested in buying an adword for that name, and to decide not to allow it, or maybe even get some of the addwords cash - it is their trademark after all. They could in essence cause the addword to be too expensive for the competitor to buy...

This is in fact similar to someone selling your personal details, google is selling other trademarks... hmm...

Quit Settling (1)

WindBourne (631190) | more than 5 years ago | (#27978909)

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 at you and everybody else. The company owns the trademark. BUT, ALL OF US have the RIGHT to put up ads against it based on seeing the ad. DO NOT SETTLE.

Re:Quit Settling (1)

Thing 1 (178996) | more than 5 years ago | (#27979089)

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; but they too can be used by the other party to apply leverage. A pre-nuptial agreement can actually even save a marriage (by removing the incentive to kill or divorce).

Stale data from 20 years ago is that 53% of all marriages end in divorce (it's likely higher than that, now). So regardless of your current financial situation, it makes sense to protect yourself; you may win the lottery (or work for a successful startup, with stock options), and potentially regret your decision to "play nice".

My first was contractless, but she was not savvy either -- she opted for the book "Divorce For Dummies" instead of hiring an attorney. I applaud her move. :)

In The Real World... (1)

NoMoreFood (783406) | more than 5 years ago | (#27979073)

I don't see how this would be fundamentally different from the local megastore putting their brand painkiller right next to Tylenol with a big 'Compare to Tylenol' on the front of the box.

Trademarks infringed (1, Insightful)

S*arter (1066532) | more than 5 years ago | (#27979145)

Why is there such a fuss about this? Apparently there would not be an issue if the names and trademarks in question were not already owned by other parties. the injured parties are suffering the stealing of their images and names for the profit and "fun" of persons who have not at least requested permission from the true owners, for their usage- who of you would not mind their trademarked names or images used for purposes other than the recognizability and profit of their brand and companies? seems kinda dumb to have an argument that says google is within their right to sell the usage of trademarks that were created paid for and owned by the companies they represent. Google does not own the names and trademarks of other companies they sell and should not allow anyone other than the rightful owners to use them- you know copyright and trademark infringement? DUH! The analogies are stupid! Do I have the right to used Sprint's trademark to further my business or to profit? How is it that so many are allowing the boundaries of ownership versus theft to become blurred? Simply put again, google does not own the properties they sell under the representation of advertising, and they should require that interested parties own the information publicized on their servers. I see a crippling or regulation of the keyword business coming. One good thing out of this argument may the that copyright laws are once again the debate to be resolved.

google can do what they want (0)

Anonymous Coward | more than 5 years ago | (#27979167)

Google is a privately owned website, they can put whatever they want on it. Peple have confused Google with being the be-all and end-all of the internet. if you don't like a website don't use it. start your own search engine with your own shitty company at the top of every search. the idea of the ownership of words is contary to the freedom of speech>

Smells of Socialism (0)

Anonymous Coward | more than 5 years ago | (#27979341)

So we're considering slapping Google's hand for just being capitalistic? If Google loses, why not just get rid of capitalism altogether? Think about it- it is Google's *own* freakin' site. It is not anyone else's. They pay for it to be hosted. We use it for free. So- go ahead and wrap a chain around Google's angles. The current anti-capitalist climate is just horrid.

The infringement is from the keyword purchaser (1)

GayBliss (544986) | more than 5 years ago | (#27979379)

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.

Look at the coupons on your register receipt (1)

QuincyDurant (943157) | more than 5 years ago | (#27979381)

If you buy Pampers at a grocery store, you'll see an ad, and probably a coupon, for Huggies on the back of your cash register receipt. This is not merely an analogy; it precisely the same thing using paper instead of web pages.
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