Does Trademark Law Apply To Paid Search Terms?

from the we-need-a-fair-and-balanced-answer... dept

More scary concerns about trademarks online. Following the publicity surrounding eBay’s request (and Google’s agreement) to remove all text ads that use eBay’s trademarks as keywords, other companies are wondering if they should start telling Google to remove ads under trademarks they own. I know that Google has had this policy in place for quite some time, because I had one of my own Google ads removed after a trademark holder complained. The real question is whether or not trademark law really covers this situation. When my ad was removed, my lawyers told me that they could fight it and win, especially since the “trademarked” phrase was incredibly generic. However, the cost of fighting it was not worth it. If Google continues to remove all ads that include trademarked words or phrases, though, it will vastly cut back the value of their adwords program. It shouldn’t be illegal to buy ads based on trademarked keywords, as long as the ads don’t try to appear as if they are for the company that owns the trademark. That is, if no one is trying to trick visitors into believing they are eBay, then eBay shouldn’t have the right to claim a trademark violation. Trademarks are designed to prevent confusing customers by having a fraudulent player pretend to be the real entity. As long as that’s not happening, the ads should be allowed to stay.

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Comments on “Does Trademark Law Apply To Paid Search Terms?”

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Edwin (user link) says:

Different situations, surely...

I can see at least two clearly different situations.

eBay is a coined term. It’s not a normal English-language word. As such, it’s fairly easy to imagine that people wouldn’t be searching for eBay if eBay themselves hadn’t done such a good job of marketing their product. So I can see the argument for protecting this kind of trademark.

Where it gets stickier is for trademarks that are also common every-day words in English (or any other major language).

Mike (profile) says:

Re: Different situations, surely...

I don’t buy that. There are plenty of situations where I think it’s completely legitimate for others to buy eBay keywords.

– If you’re selling products that work with eBay. For example, software that helps you manage your eBay auctions. Shouldn’t you be allowed to advertise with the word eBay – as long as you make it clear you’re not eBay?

– If you’re selling products on eBay. Shouldn’t you be allowed to advertise your own sales without having to go through eBay’s marketing team. If eBay really wants people to use them as the platform for e-commerce, then they need to let people advertise. If they can’t advertise, they’re lessening the value of their own platform.

– If you compete with eBay. Who said there’s a law that says you can’t be mentioned in the same breath as a competitor? When I drive down 101 near Oracle, I always see billboards for competitors. Should the same thing be illegal online? No one is pretending to be someone they’re not. They’re just giving consumers more information and options – and it’s up to the companies themselves to deliver superior value.

Trademark infringement should only apply to companies that are trying to fraudulently appear as another company.

tom says:

Ebay's Paradox

Trademarks are design to prevent confusing consumers. But they ownership also gives you the right to be the only one using this word, in this particular segment on the economy. So, if you let people buy Ebay keywords, it diminuish the monopoly the owner has on this word. Meaning that even if people aren’t tricked and know this is not Ebay, some of them will actually go see, and either they will then go to Ebay or not. But, as the navigation path is different, maybe more or maybe less of them will actually go see Ebay. So buying trademark’s keywords has an impact on the traffic and visibility of the owner.

Now the strange thing, is that Ebay is doing exactly what they told not to do, buying a lot of keywords, related to something sold on their site. Try ‘chanel’,’tommy hilfiger, or whatever..

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