Google, in response to the growing litigation involving the use of third party trademarks as keyword inventory within its AdWords program, has unveiled a new policy by which it disclaims any responsibility to monitor or restrict keywords for ads served within the U.S. and Canada. In other words: Sorry trademark holders, we're going to let anyone bid on the brand terms that you've spent so much money to establish with consumers.
This is probably not the policy change that American Blind & Wallpaper Factory ("ABWF") and PetsWarehouse.com were expecting in response to their lawsuits over the sale of trademark-triggered ads within Google AdWords. The move does, however, clarify Google's position-it's keyword-triggered AdWords listings do not create the "likelihood of consumer confusion" required for a finding of trademark infringement.
So let the bidding for competitors' trademarks begin, right?
Not so fast. First of all, the judicial system, not Google, is responsible for determining what does or does not constitute trademark infringement. And with pending cases filed by ABWF and PetsWarehouse.com to lead the way, look for more trademark owners to file lawsuits seeking temporary restraining orders to prevent Google from "selling" their trademarks until this issue can be resolved by the courts. It may be years before such a resolution, but Google's new policy increases the likelihood that there will be a judicial resolution of this issue.
Second, even Google still recognizes an obligation to review and remove AdWords listings that use unauthorized third-party trademarks in their titles or copy. Google, however, puts the burden on the trademark owner to discover the infringement and notify Google via an offline trademark complaint procedure. Setting aside the irony of requiring an offline procedure to resolve an infringement facilitated by AdWords' online process, Google would be wise to clarify the timeline by which such complaints will be handled.
Finally, regardless of Google's liability, AdWords advertisers who use third-party trademarks in an unauthorized manner may be individually liable for trademark infringement. Thus, Google's new policy should not cause you to rush out and buy your competitors' trademark-related keywords. Fail to follow this advice, and you might find yourself on the receiving end of a cease & desist letter and possible litigation.
So, what's a search marketer to do? The conservative recommendation is to continue avoid bidding on trademark-related keywords unless:
- You are the trademark owner or authorized licensee
- You're an authorized reseller or affiliate of the trademarked products or services
- Your use constitutes "fair use" of the trademark (such as selling a pair of "Nike shoes" on eBay)
- Your use constitutes a "comparative advertisement" as defined by the FTC
I should mention that there is still one trademark that you can't bid on through AdWords, even with the change in policy. The trademark?
Google Plans Trademark Gambit
CNET News.com, Apr. 13, 2004
Google plans to stop limiting sales of trademarks in its popular keyword advertising program, a high-stakes gamble that could boost revenue but also create new legal problems for the company.
Jeffrey K. Rohrs is a "recovering attorney" and Director of Digital Marketing for Optiem a full-service digital marketing firm based in Cleveland, Ohio. Since 2001, Mr. Rohrs has moderated the "Search Engines and Legal Issues" session at JupiterMedia's Search Engine Strategies Conferences.
Amazon's A9 Launches Beta Search Site
Amazon.com's separately branded and operated subsidiary has launched a beta version of its web search site. Search results are powered primarily by Google, with other results and enhancements from A9.com, Alexa, and Amazon.com.
Search Engine Watch was briefed about the service more than a month ago, but we were not able to write about it until now. The most interesting feature of the A9 beta is the integration of Google web search results with Amazon's "Search Inside the Book" feature. The service also has a useful search history function, and other features that we'll describe in detail next week when we take a closer look at the service.
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