The question over whether or not search engines can sell advertisements based on trademarked keywords is an old one that's been discussed countless times -- in cases involving companies like Geico
and American Blinds
. The fundamental issue in these cases is usually a misunderstanding of the purpose of trademark law. Trademarks aren't like other types of intellectual property law (patents and copyrights), but are more for consumer protection
-- to keep people from getting confused. Advertising to someone looking for a competitor isn't confusing -- it's just standard every day business. That's why companies buy billboards near their competitors' offices or why you might get coupons for a competing brand when you buy something at the supermarket. Yet, too many companies simply assume that trademark is like a patent and gives them complete control. Unfortunately, this had resulted in a bunch of lawsuits against the likes of Yahoo and Google for running what should be perfectly legal ads. If the ads were confusing, that's a different issue -- but simply buying an ad on a keyword should not be a violation of trademarks. A secondary issue is why Yahoo and Google were so often the target of these lawsuits -- since it wasn't those companies actually buying the ads and violating trademarks (if there was any violation). It's the company doing the advertising.
With all of these lawsuits, though, Yahoo and Google took separate paths. Yahoo ended up settling the cases
and then said they would stop selling ads based on trademarked terms
. Google took a harder line stance, and while they eventually settled
the case, Google made it clear it thinks it's fine to sell ads based on trademarked keywords. Oddly, it seems a different part of Yahoo agrees. While Yahoo may no longer sell such ads, Yahoo apparently has no problem buying them. The company went to Google and bought ads based on the name of a competing dating site. That dating site is none too pleased and, as Search Engine Watch
has noted, has sued Yahoo
for trademark infringement. This is a partial step in the right direction, as the firm is suing the advertiser (Yahoo) rather than the ad seller (Google). However, it's still the same story with a company believing no one else can ever use their trademarked term in any way. The company is claiming that it is still causing customer confusion -- but assuming the ad says it's from Yahoo, it'll be hard to prove that's the case. Perhaps, this is really just a desperate publicity attempt from the competing dating site.