Why Is Google Changing Its AdWords Trademark Policy Now?

from the confidence-in-its-lawyers? dept

I was quite surprised last week to find out that Google has changed its rules on trademarks and AdWords in many countries around the world. In the past, it had limited the use of trademarks both in the ads and (more importantly) as keyword triggers. In the US it had allowed trademarks as keyword triggers (in most cases), but in other countries, where the laws and the courts more heavily favored trademark holders, the company had been much more strict.

Now, I think Google is absolutely right to take this stance, as I don't see why it should be a problem at all to advertise on trademarked keywords, so long as the ads aren't confusing to the users. Trademark is not about ultimate control over the mark, but has always been designed for the sake of consumer protection, to avoid having someone buying Bob's Cola thinking it's Coca-Cola. It was never designed to give total control to one company and allow them to prevent anyone else from making use of the trademark. Yet, over the years, trademark law has drifted further and further from those origins, and today many people falsely believe that it's just like a patent or a copyright.

And, of course, even if you grant the (false) premise that trademarked terms shouldn't be used as keywords to trigger advertising, it's doubly ridiculous that Google should be liable. Google is just the platform provider, and if there needs to be any liability, then it should be on the advertiser, not Google itself.

So while I'm quite happy that Google is taking this stance, I'm really surprised (and somewhat confused) as to why it's doing so. It will almost certainly lead to a lot of expensive lawsuits around the globe -- and given how some other countries interpret trademark law these days, Google stands a decent chance of losing in some of those locations. Even in the US, the issue still comes up quite often... and, in fact, just as this change was being announced, a class action lawsuit was filed against the company in the US over the issue. Hopefully this case goes nowhere fast, because it seems to be repeating all the mistakes of earlier cases, misunderstanding the purpose of trademarks and falsely blaming Google rather than the actual advertisers. However, it's noteworthy in that it's the first class action suit of this nature, rather than just a single company. That means there will likely be more such suits on the way... and we'll start to see them internationally as well, thanks to the policy change.

In a NY Times article about both the change and the lawsuit, a representative from Google is quoted as saying:
"I think that there will be trademark owners that do not like this policy," said Terri Chen, senior trademark counsel at Google. "But trademark law allows for that. It is a pretty well-established principle in the offline world and in the online world."
Again, while I agree, I find Google's somewhat cavalier attitude towards the lawsuits that are certainly on the way surprising. It's not just that trademark owners won't like the policy. Many of them are going to sue -- and trademark law around the world (unfortunately) is not as "well-established" as Chen seems to make out. All in all, it seems a bit surprising that Google would go out of its way to attract new lawsuits. Could it be that the company is back to fighting certain lawsuits for principle? This was something the company had done years ago, but had largely abandoned of late. Or is there some other reason? Some might argue that it's a pure money grab, as this will allow more (and potentially more lucrative) advertising to run on the site, but the cost of lawsuits and the uncertainty of those lawsuits could be quite expensive.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, May 15th, 2009 @ 3:56pm

    google figured they can afford to fight.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, May 15th, 2009 @ 4:09pm

    Google is just the platform provider

    To me anyway, selling ad words (including suggesting such words for adoption by its advertisers) seems a far cry from being "just a platform provider".

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    ChurchHatesTucker (profile), May 15th, 2009 @ 4:41pm

    C. F. Marketplace

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    inc, May 15th, 2009 @ 4:53pm

    Good for Google. I think they should step up and fight. The reason that all these laws become a mess is because no one stands up for their rights. I think in the end Google will stop hemorrhaging money just settling these matter to every Tom, Dick and Harry that comes along.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    djb, May 15th, 2009 @ 9:07pm

    Good for Google

    I've worked in the print industry for decades. I don't see you this is any different than an advertiser in print saying "I'll run a full page ad any time my competitor runs an ad or you run a legitimate news story about them."

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Ronald J Riley (profile), May 16th, 2009 @ 5:50am

    Is Google a Trademark Parasite?

    "Some might argue that it's a pure money grab, as this will allow more (and potentially more lucrative) advertising to run on the site, but the cost of lawsuits and the uncertainty of those lawsuits could be quite expensive."

    Good for you Mike. Lets face the reality that staggering success tends to cultivate equally staggering egos. Those big egos often put the founders and their companies into an ethical downward spiral.

    I honestly don't know if Google really started with good intentions or it was all media hype. But there is little doubt in my mind that today Google needs a good spanking to return them to a more ethical path.

    We really need antitrust action to temper Google's attitude. I think that they are committing far too much evil.

    Using someone else trademark for profit is wrong. Using it to criticize them is clearly fair use. I most certainly agree that trademark is being abused in some cases but we should not undermine the purpose because some misuse trademark law. Conversely, we should also not allow parasites to unjustly profit from use of others trademarks as appears to be the case with Google.

    Ronald J. Riley,


    Speaking only on my own behalf.
    Affiliations:
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    ulle53, May 16th, 2009 @ 7:44am

    "We really need antitrust action to temper Google's attitude. I think that they are committing far too much evil."
    Google is a search engine, how in the world can you label that evil, do you even understand what a search engine is?
    Some times you really amaze me.

     

    reply to this | link to this | view in thread ]

  8.  
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    Mike (profile), May 16th, 2009 @ 12:11pm

    Re: Is Google a Trademark Parasite?

    Lets face the reality that staggering success tends to cultivate equally staggering egos.

    Since when are large egos illegal?

    Those big egos often put the founders and their companies into an ethical downward spiral.

    Do you have any evidence to support that, or are you still in an evidence free zone?

    We really need antitrust action to temper Google's attitude. I think that they are committing far too much evil.

    Can you provide an example?

    Using someone else trademark for profit is wrong.

    No, actually, it's not. You do it all the time.

    Conversely, we should also not allow parasites to unjustly profit from use of others trademarks as appears to be the case with Google.

    How are they "unjustly" profiting? It seems that they are providing a very useful service that benefits consumers. That seems ultimately fair.

     

    reply to this | link to this | view in thread ]

  9.  
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    Killer_Tofu (profile), May 18th, 2009 @ 6:34am

    Re: Is Google a Trademark Parasite?

    I would actually say that you and other IP maximizers are the ones on the unethical path.
    The internet is here. Adapt or die.

     

    reply to this | link to this | view in thread ]


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