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    Google will no long block advertising of trademarks.


    Yesterday (April 8, 2004), I received the following message from the Google Trademark Policy Team:



    Hello,

    We're writing to inform you that we're changing our trademark
    complaint procedure. This change may affect how we handle
    the trademark complaint you currently have on file with us.

    If you've requested in your complaint letter that we prevent
    advertisers from using certain trademark terms anywhere in
    their ad text, we will continue our efforts to support your request.

    However, within the coming weeks, our trademark complaint
    investigations will no longer result in Google monitoring or
    restricting keywords for ads served to users in the US and
    Canada. Complaints received after today will be processed
    under our revised procedure.

    You do not need to file your trademark complaint with us again
    unless you would like to amend it based on the new guidelines.

    For more detailed information regarding our trademark complaint
    procedure, we invite you to review our revised complaint procedure,
    posted online at: http://www.google.com/tm_complaint.html.

    Sincerely,

    The Google Trademark Policy Team
    To summarize the change, Google has decided that it will only block advertisers from using a trademark term within an advertisement. Google will not block advertisers from advertising a competitors trademark.

    For example, Fuji could not use the word KODAK in an adwords advertisement for its film, but it could advertise the term KODAK. Formerly, Google had a procedure whereby Kodak could request that other companies be blocked from advertising its trademarks.

    Howard Metzenberg
    Highland Park, IL
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    I am surprised by this. Wonder how the big trademark holders will react.
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    Reaction to Google Policy Change


    The issue of whether companies can buy an advertisement on a search engine for a competing company's trademark is still legally unresolved. None of the court cases to date have provided a definitive ruling.

    My company is the owner of a valued, registered trademark. D|ck Blick Art Materials is the most searched for trade name in art supplies. Compared to Kodak or Coca-Cola, our tradename is minor, but we still face dozens if not hundreds of trademark cheaters. Some of them sell penis pills or herbal viagra, and have no idea that D|ck Blick is a seller of art materials, established long before the word "D|ck" came to stand for the male member. They notice that a few hundred people a day are searching for something called "D|ck blick," so they create attraction pages to draw clicks from our website to theirs.

    There is little we can do about penis pills, but those who sell art supplies understand that a lot of people who want to buy art materials know our name. They are the trademark infringers we really are concerned about, and over and over we have found them buying our name through Google Adwords.

    Up to now, Google has been willing to remove advertisers who buy a comptitor's brand name through AdWords. With this change in policy, Google is saying that we are responsible for enforcing our own trademark rights.

    Any advertiser with a valuable trademark to defend would include Google as a party if I were filing a lawsuit against a competitor for violating its trademark in this way. After all, Google would be profiting by selling the advertisements, and thus reaping some of the benefits of this unlawful use of the trademark.

    Google is a California corporation. California has a "deep pockets" law. What this means is that when two or more parties share liability in a tort, the party with deep pockets (i.e. sufficient resources) can be required to pay the entire damages, even though a court has determined that its share of the liability is as low as 1%.

    Is Google prepared to offer any fly-by-night advertiser the opportunity to advertise a valuable trademark like COCA-COLA or KODAK, and then pay the full cost when a court determines that Google shared some of the liability for breach of trademark?

    Howard Metzenberg
    Highland Park, IL

    PS: I am hoping that some sensible moderator, perhaps the owner of this site, can do something about the idiocy of censoring the word "D|ck." Do I really have to invent a silly spelling to write out the registered trademark of my company? Is there some kind of way of coding this forum so that I can say the name of my company without having to go in and change the letter "i" to a "|" each time it appears?

    Moderators, did you ever read Herman Melville in school? Remember Moby **** the great white whale? Did you ever learn about **** Nixon, the 36th president of the United States, and the Watergate scandal?

    Moderators. Please turn off this silly censorship of words. Spammers already know how to get around it.
    Last edited by Howard Metzenberg; Apr 11th, 2004 at 04:42 AM.
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    Unfortunately or fortunately Google cannot become an arbitrator of trademarks.
    Are magazines expected to vet every advert to make sure that the advertiser is allowed to use all terms that may or may not be trademarks?
    Did you know there are 14 SEO trademarks?
    Is Google reponsible to figure out if SEOcaht violates any of them?
    And Google cannot take claims by trademark owners at face value as they may be overreaching the limitations of their trademark. It is a case for the courts not Google.
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    In fact, magazines do arbitrate trademarks. Any magazine that sells a lot of advertising requires legal counsel to examine all advertising for possible trademark issues. If you look at advertising in magazines and newspapers, you will see that advertisers are extremely careful to identify trademarks used in advertising, both their own and those of other companies.

    The legal concepts that apply to commercial speech and advertising are quite different than those that apply to news and information in general. Of course the rules of commercial speech are enforced through civil litigation between parties, or the threat thereof. There is no regulatory body that determines what you can or cannot say in commercial speech.

    If you look at the Google policy statement, which I referenced above, Google will continue to monitor the contents of advertisements themselves, just as a magazine would.

    What Google has announced is that they will no longer exercise control or discretion over which keywords and terms they sell, and to whom.

    What this means is that Google will not sell an advertisement to a competing cola manufacturer that uses the name COCA-COLA within the body of the advertisement, but they will allow a competing advertiser to buy the keyword COCA-COLA.

    It's unclear, but Google may have grandfathered in existing trademark decisions that are already entered in its advertising database, and the policy change may apply only to new trademark complaints that Google receives.

    This issue, of whether a search engine can "sell" access to a trademark to a non-owner, has never been resolved in court, although several cases have brought it up. To date, these cases have either been resolved out of court, or the courts have legally sidestepped the issue, avoiding a definitive ruling.

    Obviously, the issue applies only to unique and distinct trademarks such as KODAK, COCA-COLA, and in my company's case, D|CK BLICK. A trademark like APPLE (Apple Computer) or SUN (Sun Microsystems) cannot be protected this way, since the mark has generic meanings in other contexts. The trademark itself only gives the owner exclusive rights over a single narrowly defined field, the sale of computing systems and software.

    Furthermore, the content and purpose of the site that is being advertised has to be taken into consideration. A news or financial analysis site that covers Microsoft can legally use the trademark MICROSOFT to advertise the information it provides. Similarly, a company that sells Coca-Cola collectibles has different rights to the name COCA-COLA than a company that sells a competing cola.

    I can see that there are some trademark claims that are impossible to arbitrate, and even more are on the horizon. For example, European producers are now asserting that regional designations for wines, cheeses, and other foods should enjoy global trademark protection, although by every stretch of the imagination, their marks have lost their distinction and become generic words. Examples of such terms include CHEDDAR, CHABLIS, and BURGANDY.

    Note that many words in the English langauge, such as NYLON and ASPIRIN, are former trademarks that lost their unique and distinctive character, and thus their legal status as trademarks.

    Trademarks have always had a regional character, and yet the Internet is global. The town in the Czech Republic from which the name BUDWEISER was originally derived is suddenly interested in rights to its name. Google does have at least an imperfect ability to sell different keywords at different rates in different regional markets.

    By declining to arbitrate trademark issues when it sells access to trademarks, Google will increase the costs to its advertisers who must protect their trademarks from infringement by others. In trademark law, if you fail to protect a trademark, you can lose it. I have also pointed out that Google is exposing itself to legal liability with its new position.

    This would be a great time to be a trademark attorney!

    Howard Metzenberg
    Highland Park, IL
    Last edited by Howard Metzenberg; Apr 11th, 2004 at 08:15 PM.

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