Federal Court Makes Ruling in First of Hundreds of Google AdWords Trademark Infringement Lawsuits.
Sponsored Search Continues to Infringe on Copyrights
Federal District Court Judge Leonie Brinkema earlier this month dismissed most of Geico's trademark infringement lawsuit against Google AdWords. The judge ruled that she and the court at this time could not establish how Geico's trademarked name was being impacted when Google keyword searchers searched for Geico or Geico insurance. The judge ruled at this time that the federal court needed to dismiss the case and move on as they are unable to make a fair and accurate ruling without more information about the act of searching on the Internet.
It is this misunderstanding and lack of knowledge regarding keyword search that boggles any marketers mind as keyword search the second most popular activity online after email retreival has become the most effective form of online advertising and is now a $4 billion dollar industry.
Does our court system lack understanding of the Internet ? Apparently.
Name any other media outlet that allows a competitor the opportunity to invest as little as $30 to open a Google AdWords or Yahoo Search Marketing Pay Per Click account and immediately begin advertising (and misleading consumers) on established trademarked names. In many cases these rogue advertisers are even allowed to disparage established trademarks with agressive advertising messages that focus strictly on tarnishing established trademarks that compete for market share.
Imagine this scenario, one night you turn on American Idol on ABC only to witness Kia run a (:30) second ad that rips on the Ford brand name. Is this possible ? not with network TV.
Let's review available mediums and Trademark Infringement Advertising Opportunities
Available Trademark Infringement Advertising Opportunities by Media:
Is trademark infringement advertising available in TV ? no.
Is trademark infringement advertising available in newspapers ? no.
Is trademark infringement advertising available in magazines ? no.
Is trademark infringement advertising available in the Yellow Pages ? no.
Is trademark infringement advertising available in the Search Engines ? yes.
Trademark Infringement advertising is being used every day in search marketing, a medium that now offers (10) times the reach of TV, Newspapers, Magazines, and the Yellow Pages.
Even more importantly, keyword search offers no waste and allows competitors to infringe trademark brands where it hurts the most -- with in-market consumers.
How long can the Google and Yahoo continue to take a "hands-off" approach. One day a knowledgeable federal judge is going to determine that the seach engines establish much stronger trademark protections and that new sponsored search marketing policies must be created and enforced that work to prevent sponsored search trademark infringements.
Geico was correct when they announced that any keyword sponsors on the word Geico, a trademark that Geico owns, enforces, and has paid millions to establish and protect, must be approved by their company, before the sponsored advertising message is allowed to appear before millions of in-market keyword searchers.
The judge did rule that sponsored search ads that included the word "Geico" in the headline or text of the message caused brand confusion, and indeed violated Geico's established trademark.
The judge could not rule that Google was responsible for the sponsored ads (?) primarily because she and the court had no idea how to calculate monetary damages. Google has stated repeatedly that they prevent advertisers from using other companies names in their advertising messages, however they remain silent over the fact that their AdWords keyword suggestion tools actually encourage advertiers to sponsor ads on popular trademark names by keyword category.
How long will the courts allow Google and Overture to continue to encourage trademark infringements with the promotion of trademarks as potential keyword advertising buys?
Had this judge been presented with the keyword suggestion tools that display the most popular keyword phrases by category and often times include established company and brand names as available keywords for sponsorship ?
What if network television reps, or newspaper reps, or magazine salespeople began encouraging clients to use creative advertising content that attacks competitors established trademarks ?
Google attorney Michael Kwun said that the company is better able to block trademark infringing ads at this time. "When our AdWords monitoring systems were less mature, we didn't catch as many of these problematic ads as we might have," he said. "Today, our technology is much more sophisticated."
If that, in fact, is the case, Google will need to prove it many times in the coming months as hundreds of AdWords trademark infringement cases have been filed and are active at this time. Also does Google's new AdWords ad message monitoring system go one step further and actually police the keyword suggestion tool tied to the AdWords program ?
How long before the court rolls up its sleeves, studies the topic in-depth, and examines the use of trademarks as keyword triggers in search engine marketing ?
Once the court approaches Search Marketing Enforcement how long will it take for the judges and courts to turn their attention to an even larger Sponsored Search issue: PAY PER CLICK FRAUD.
