Trademark litigation seems to be on a never-ending cycle. The economy is in shambles and we're headed for a socialist system here in the U.S. One positive sign that capitalism might still exist: people are still suing the crap out of each other.
Another recent entry into the world of search advertising litigation is the American Airlines lawsuit against Yahoo. The suit is largely the same old story, third parties bid for positioning on protected terms like American AAdvantage, cause confusion, and take undue money away from the trademark owner.
Who owns the trademark when it comes to search? Where should you draw the line between moneymaker and money-taker? All of this angry litigation stems from the huge dollars that big brands measure from clicks on their trademarked terms in search results. Are they simply misunderstanding the search realm and buying funnel? Let's explore.
The Right to Search
Even if the courts can, much of the consuming public can't yet tell the difference between search ads and search listings. If you want to buy some airline tickets and you happen to look for an American airline on your favorite search engine, you might just find ads for every airline in the business.
You might also find sites peddling secret upgrade newsletter subscriptions. There could also be travel agents, opaque booking engines, and the occasional competing airline trying to pull in some dollars.
In landmark decision after landmark decision, brands have forced their way into search advertising results without paying attention to which third parties are authorized to unload their goods.
Maybe that's a bit harsh; let me try that another way. Since right or wrong is commonly left to litigation, the policy of getting away with it until caught seems to ring true. As companies get more desperate for revenue, we can expect litigation to coincide with desperation.
Or, instead of forcing search engines to be the brand police, we can simply tighten up controls on match types so a bid on the term "airline" by Continental won't appear when we search for "American Airlines."
The Engines Speak
After years of sometimes successful litigation, search sites have pretty robust trademark protection policies. Google's policy is pretty cut and dried. They pledge to investigate possible infringements, and claim to take the situation very seriously.
Google's recent out-of-court settlement with American Airlines may have provided some additional guidance for them. Yahoo's policy is filled with a bit more legalese and some instructions for setting up a claim.
Yahoo's policy is a bit more strict when it comes to proving trademark ownership, reminiscent of the pre-litigation days when content ruled and all you needed were relevant results and corresponding site content to bid on terms. That may change, as an out-of-court settlement is very likely in the current suit.
Sans Deep Pockets
What can you do if you don't have a seemingly endless supply of litigators? Start by paying attention to who you partner with and how your agreements are structured. If you make deals to increase brand exposure with cooperative advertising and its ilk, make sure you clearly state the nature of which keywords are, and which ones are not, off-limits.
I can't help but think that if some brands had a better understanding of how people search and buy, there might be a bit less legal surgery to perform. Study after study shows that buyers start with generic terms and end up on brand or product-specific terms where the purchase is often made. Hence, brand terms get all the credit for transactions and generic (or higher funnel) terms end up twisting in the wind.
Then again, allowing resellers to bid and buy on generic terms that may lead to brand-specific searches prior to a purchase isn't such a bad idea. They absorb the costs, the parent brand reaps the benefits.
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