Who Owns the Brand?

The American Airlines brand belongs exclusively to American Airlines. Or does it? When American launched its lawsuit against Google last summer, I thought it was going to be just another lawsuit brought by a company that doesn’t understand search marketing.

Yet, for a whole lot of really good reasons, brands (particularly those with resellers) maintain an ongoing battle to protect their brands. And in the online world, they want to hold search engines accountable.

The cold harsh realities in the brand ownership struggle are twofold. First, the courts have repeatedly declared that search engines aren’t responsible for protecting the brands. Second, brands have very little recourse against a search engine. So, what’s an industry to do?

Exercise in Futility?

Search engines have policies on the books for protecting trademarked terms, but the onus is on the brand to discover the abuse and notify the search engine so the offending advertiser can be removed. This battle has been going on for as long as I can remember, and I’ve never had a problem getting a listing removed from a competing brand once identified.

Geico lost its 2004 legal action against Google. Geico argued unsuccessfully that Google’s ad platform created brand confusion. In December 2005, a French court ordered Google to pay Louis Vuitton a fine, and cease offering competing ads to competitors. Back in the United States, September 2006’s Rescuecom v. Google suit was dismissed in Google’s favor.

American Airlines is just the latest in a series of lawsuits, yet the courts have consistently ruled that a search site is not liable for brand confusion. The strategy by trademark owners seems to be finding a new argument and go to court. If brand confusion doesn’t work, try something else. All the while, they might be missing the point.

The Evil that Match Does

Most of the search and brand competition train wrecks occur as a result of effectively using match technology. Google’s Extended Broad Match, along with other matching technologies from search engines, allow advertisers to effectively reach more searchers. Unfortunately, it also allows for a little brand hijacking.

For example, an airline like American can match up to any search for the term “Airline” including “United Airlines,” thereby (arguably) infringing on a trademark.

There’s also the practice of deliberately adding competing brand names, because… well… it works.

In February 2007’s Yahoo Searchlight awards, one of the submissions profiled the launch of the Lexus LS 460. One of the tactics for building site traffic for Lexus included buying competing product names like “BMW.”

Shockingly, BMW didn’t sue Lexus (it would be hard to assess damages) and the trademark/search engine soap opera continues.

Go Ahead, Pull Your Advertising

Cutting off one’s nose to spite one’s face has never been a good idea. Even if a group of advertisers did come together and pulled their search advertising, all they’d really accomplish is losing large amounts of directly accountable revenue by missing placements in top search sites.

As the Wall Street Journal’s Emily Steel recently pointed out, the possibility of advertisers coming together to protest the policy seems more likely today than it has ever been, but not in the way you might think.

As Google attempts to expand into areas of traditional media, it’s going to need the deep-pocketed advertisers currently being alienated by the lack of internal trademark policing. This could be a very large instance of mutual back-scratching, but the outcome won’t be decided in court.