SearchTHIS: Google, Search & Trademarks

Every time the good people at Google want to free the world's information, there are a few people standing by who want to slow or stop the process. Try to index a few library books and the Association of American Publishers files a lawsuit. Sell an advertisement against a trademark and attorneys start crawling out of the wood work to file suit.

The latest round of lawsuits got lost in the holiday downtime shuffle, but really shouldn't be ignored. Four days before Christmas, the Christian evangelical group, Jews for Jesus, filed suit against Google because a blogger registered "jewsforjesus.blogspot.com" and used Blogger, Google's free blog service, to publish his opinions about the group.

The phrase "continuing, irreparable and imminent harm" keeps popping up in lawsuits, and the outcome of these actions will undoubtedly shape the future of search and search engine marketing. There are, in fact, bigger issues at work here -- like whether lawsuits will cause imminent harm to the search business.

When in doubt, sue
 
The recent changes we have witnessed in the search business model are astounding. Yahoo! is approaching video with the type of zeal that only Hollywood can provide. Google has taken video to the next level with key partnerships to sell content, may be entering the PC market and has quite a robust offering in desktop utilities with Google Pack.

Most of what we have seen from courts to date has been pretty predictable. GEICO sued Google over rights to sell the brand name. On the surface, the case seemed pretty cut and dry; I own my name, you sold advertisements using my name to my competitor and profited from it. GEICO lost and it was determined that keyword ads that trigger trademarks do not constitute infringement. In France, courts had a different opinion when a judgment for the plaintiff was issued in the Louis Vuitton versus Google action. (Bob Heyman of Mediasmith had a recent piece on the French case.)

A few remaining keyword trademark suits are dragging on, but with U.S. courts leaning toward exonerating the search sites it seems unlikely that we'll see any big changes in the responsibility of the search site. The next target for litigation will undoubtedly be the advertisers and possibly even third parties placing the ads, although no one has ever gotten rich after seeking compensatory damages from a search marketing firm.

Jews for Jesus saves… err sues

Search advertising is not just for the query box anymore, and ads are appearing near just about every type of content, including blogs. According to Reuters, Susan Perlman, associate executive director with Jews for Jesus stated, "One of the wonderful things about the internet is that there is freedom of expression, but there should be a protection... so that organizations like ours can represent ourselves."

There is protection for domain names, and it turns seven years old this year. 1999's Anticybersquatting Consumer Protection Act might have something to say about future lawsuits. AOL's legal department site offers the following summary of the act. "It found that the unauthorized registration or use of trademarks as internet domain names or other identifiers of online locations (commonly known as 'cybersquatting') -- (1) results in consumer fraud and public confusion as to the true source or sponsorship of products and services; (2) impairs electronic commerce, which is important to the economy of the United States; and (3) deprives owners of trademarks of substantial revenues and consumer goodwill."

However, a new precedent stating that a site is ultimately responsible for content users generate would be unthinkable. The floodgates would be open for action against almost any company that has a user generated platform. A win in this instance seems very unlikely. After all, eBay isn't responsible for untrue negative postings about eBay store owners; the person that posted the negative comment is to blame.

The real issue is whether the domain squatting legislation applies to a blog URL, or third level sub-domain.

Think bigger, much bigger

The Google library project is another seemingly harmless task that has come under fire. In mid to late 2005 several groups initiated law suits against the information indexing champion. The writers and publisher groups feel their trademarks are being violated by Google's ongoing plan to index millions of books from three major university libraries -- Michigan, Stanford and Harvard.

So indexing library books might cause harm, what about the next generation of search?

Google or MSN's high quality maps might be held responsible for images used in planning robbery getaways, terrorist attacks and random acts of school violence. RSS feeds taken from point A to point B on the web that serve advertising could be thought of as a trademark infringement and therefore causing irreparable harm.

Google's new video store is a personal favorite, and we have yet to see the first lawsuit against it. I defy you to find another place where you can buy an episode of the "Brady Bunch," follow it up with home video depicting a grade school age girl firing a heavy machine gun and then wash it all down with a racy beer ad. I wonder what kind of damages they'll seek on that one?

More complications to come

Maybe the irreparable and imminent harm we face will be more closely related to the intellectual fallout associated with the ease of consumption of bush league media -- let's say, for example, Uncle Bob's home video or consuming mass quantities of old "Brady Bunch" episodes. If Google wants to index books in a card catalog -- that's a problem -- but it's ok to watch little kids shooting machine guns and morons on BMX bikes riding the do-it yourself vasectomy trail.

Yes, that is much better than having instant access to the Oscar Wilde collection. What was I thinking?

To date, the message from our judicial system is clear. Sites have yet to be held responsible and the liability may be easily extended to advertisers or third parties. Playing it safe with trademarks in directive search just isn't enough anymore. Legal grey areas will continue to be exploited until this young little industry can grow up. Laws will become more specific; search will earn its litigious stripes, and we can get about the business of being in business.

Additional resources:

BMX Nitwits

You have to be kidding with the machine guns

Buy the Brady's for $1.99

iMedia Search Editor Kevin Ryan's current and former client roster reads like a "who's who" in big brands; Rolex Watch, USA, State Farm Insurance, Farmers Insurance, Minolta Corporation, Samsung Electronics America, Toyota Motor Sales, USA, Panasonic Services, and the Hilton Hotels brands, to name a few. Ryan believes in sound guidance, creative thought, accountable actions and collaborative execution as applied to search, or any form of marketing. His principled approach and staunch commitment to the industry have made him one of the most sought after personalities in online marketing. Ryan volunteers his time with the Interactive Advertising Bureau, Search Engine Marketing Professional Organization, and several regional non-profit organizations.
 
Mr. Ryan is managing partner at
Kinetic Results.

 

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