American Airlines And Google Settle Keyword Advertising Spat

Thu, Jan 10th 2008 12:20pm

Filed Under:
keyword ads, trademarks

Companies:
1-800 contacts, lensworld

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1-800 Contacts Sues Competitors For Keyword Ads Despite Losing Similar Cases And Buying Keyword Ads Itself

from the please-explain dept

We keep hoping that companies will realize that suing over competitors buying ads on trademarked keywords will finally go away, after case after case after case has shown that it's not a violation of trademark law. However, they just keep coming. The latest may be the most ridiculous, as described by Eric Goldman. 1-800 Contacts is suing competitor LensWorld for buying ads on the "1800Contacts" keyword. Again, assuming that LensWorld's ads are clearly for LensWorld, then there shouldn't be any chance of confusion and the case should be tossed out. However, what makes this case even more interesting is that 1-800 Contacts has already brought similar cases in the past -- and lost them decisively. In fact, in that case, 1-800 Contacts seemed to have a stronger case, as it involved adware popping up full ads next to their website, rather than just keyword search ads. So it seems odd that 1-800 Contacts would try again -- other than the fact that it's trying in a different circuit.

However, what's even more bizarre is that while 1-800 Contacts is suing, it has no qualms in doing the same thing itself. Yes, the company has a history of buying ads on the keywords of its competitors, which is part of the reason why the company lost the earlier case. Not only that, but when the state of Utah tried to put in place a law that would ban advertising on trademarked keywords, 1-800 Contacts was one of the companies that convinced Utah legislators that such a legislation was a bad idea, highlighting how the buying of trademarked keywords helped 1-800 Contacts promote its business. As Goldman says: "Hey 1-800 Contacts, maybe I'm missing something, but if you wanted to bring a keyword advertising lawsuit like this one, maybe you shouldn't have badgered your legislators to remove a law that would have ensured your success in court!"

Thu, Jan 3rd 2008 11:23pm

Filed Under:
keyword ads, trademarks

Companies:
ebay

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Yet Another Keyword Advertising Suit... And Yet Another Ruling That Keyword Ads Don't Violate Trademarks

from the please-make-it-stop dept

We're beginning to get quite sick of companies claiming that having a trademark give them total control over a trademarked phrase. That's simply not true and never has been true. Yet it shows up all the time in the ever popular lawsuits over keyword advertisements. Over and over again the courts have shown that it's perfectly fine to use a competitor's trademarked phrase or name as a keyword to put up a competitive ad. The latest such case highlights an important point. While many of the cases have argued that using a keyword isn't "use in commerce," (a key part in determining if a trademark has been violated) this ruling found that it actually was used in commerce... but it still didn't matter because just because you own a trademark doesn't mean you can prevent all uses of it. You can only prevent uses that are likely to confuse potential customers over who is actually selling what, or that will dilute your brand. That's not the case when someone is simply putting up a competitive ad -- and it's nice to see a court recognize that fact.

Tue, Sep 11th 2007 12:09pm

Filed Under:
keyword ads, trademarks

10 Comments | Leave a Comment..

More Misplaced Google Ad Lawsuits... This Time In Australia

from the everybody-sue-Google-now dept

Just as Google has settled the longstanding keyword trademark lawsuit from American Blinds (and as a new one starts up from American Airlines) in the US, it appears that Google is facing a similar challenge down under. The Australian Consumer and Competition Commission is suing Google for supposedly deceptive ad practices, but the details suggest that perhaps the ACCC is a bit confused. It seems to be complaining about a few different things, and it's worth separating those out. First, it appears that an organization named Trading Post, which appears to be an online classifieds site, bought deceptive ads on Google, pretending to be local Australian car dealerships. This can absolutely be seen as trademark infringement if the ads were (as the ACCC accuses) made to look as if they pointed directly to the dealership websites, rather than a Trading Post page. However, the infringement is by Trading Post -- not Google. ACCC is suing both, but it's hard to see why Google should be responsible for the actions of an advertiser.

The second complaint is even more bizarre. ACCC claims that Google hasn't done enough to distinguish the top ad slots from the organic search results. That seems like a stretch. Google has always done a good job highlighting and marking the listings that were ads, and you'd have to have pretty bad eyesight not to realize which slots are for ads and which are for organic listings. Nevertheless, ACCC claims that Google does not make this clear and that people would think the sponsored listings were the top organic listings. Of course, it's hard to see how they can back that up, since the sponsored slots are so well marked. However, why let little things like facts get in the way of a chance to sue the almighty Google?

Update: Well, that was fast. It looks like the judge in the case agrees with us, as he wasted no time slapping down the ACCC's arguments as "incomprehensible," "opaque," and "somewhat repetitious."

Tue, Sep 4th 2007 7:05am

Filed Under:
keyword ads, trademark

Companies:
american blinds, google