I am an attorney involved in one of those Google cases. So much for the full disclosure.
I would like to point out that a key aspect of proving a trademark violation is showing a likelihood of confusion. Without confusion, you can use any trademark you like essentially however you like (as long as you don't run afoul of the trademark dilution doctrine – you can't market a product like Mercedes-Benz brand coffee filters – even if there is no risk of confusion). An easy example of permissible use: "Our cars are much better, cheaper and last longer than those Mercedes-Benz cars". This is a "trademark use" but not a trademark violation because there is no confusion that this advertiser is a source of Mercedes-Benz cars.
As long as the use of a trademark on Google's Adwords campaign is not confusing, there is no trademark violation. And in the real world, there ususally is no confusion. However, Google tries to bypass this issue by arguing that there is no "trademark use" in the first place. The silent "second part" to their argument is that if it isn't trademark use, then they are allowed to make such use as confusing as they like. This is not in the consumers' best interest.
Google increases their revenue, I believe intentionally, by confusing consumers. They list some ads right at the top of the search results so a consumer would think they are part of the results, and even that they are the most relevant results – since they are at the top. They label these areas in which advertisements occur "sponsored links" as opposed to "advertisements". Even that label is in small font or in a pale color and is hardly noticable. Why not in bright blue and large letters? After all, that is how they display the headers of the ads. If Google can get a computer user to click on one or two of these advertisements – for whatever reason – before getting to the web result they really want, Google just doubled or tripled their revenue. Remember, Google is not a search engine company. Google is an advertising company which also offers a free search engine. 97% of revenue comes from those "clicks" on the advertisements. When a computer user searchs on a search engine, they don't spend a lot of time on the search results page before "clicking" on a selection.
Suppose directory assistance (411) did what Google does? They offer to read off your company's phone number whenever a consumer calls looking for the number of your biggest competitor. Now, they will also read the number of the competitor, but if you bid more than they do, you get your number read off first. Seem confusing or unfair? After all, that competitor may have spent millions of dollars to make sure that consumers ask for them by name. Well according to Google, this would not be a trademark violation no matter how confusing.
In Google's world, Joe's wristwatch company can buy an ad to be displayed when a consumer searchs for "rolex on-line". Although Google will not permit Joe to use the word "rolex" in the body of his ad, there are many ways to confuse a cat (to mix a metaphor). Something as straightforward as "Lowest price for the wristwatch you are looking for" would do nicely. In fact, Joe knows he doesn't sell Rolexes. He just wants someone willing to spend a lot of money buying a watch to come look at his watches. Since no one knows his name, he will pay a couple of pennies a click to use Rolex's name to get his message out. Meanwhile, Rolex now has to bid against Joe to use their own trademark to advertise their own products and a percentage of consumers using Google to buy a Rolex watch on-line are now misdirected to Joe's website because they think they can buy a Rolex watch there. "After all", they think, "I was searching for Rolex on-line. Why would this ad appear if they don't sell Rolex watches?"
That's my two cents. Or maybe it was a buck and a half. |
