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Search Legalities to Watch For

Kevin M. Ryan
Search Legalities to Watch For Kevin M. Ryan

The use of another's brand identity in search engine advertising has been the subject of debate for quite some time. When a brand keyword search triggers an advertisement on a search engine, searchers not only click often, they buy big.

Naturally, competitors would love to capture buyers about to make a purchase decision, but should search engines allow competitive brands to buy those keywords? To date, the courts have decided both in favor of search engines and against them in at least two highly publicized lawsuits.

For the moment, it's up to you to take action when an abuse occurs, and there are several viable options available to brand marketers. However, with actions still in court and recent legislation from Utah, the product and brand search term debate is once again heating up.

Search and the law
In December, 2004's GEICO vs. Google, Inc. action, a Virginia federal judge ruled in Google's favor citing that competitors buying GEICO keywords did not create confusion. The following year, Louis Vuitton sued Google in France. In December 2005 Google was ordered to pay Louis Vuitton a fine and cease offering keyword search ads to competitors.

Other lawsuits have yet to resolve, such as Rescuecom Corp. vs. Google, Inc. The first action was decided in September 2006 in Google’s favor. Rescuecom appealed the decision and the case has yet to be decided.

Utah recently passed legislation that makes a competitive brand keyword purchase unlawful citing that keyword searches can be a new form of identity theft. Meanwhile, consumer activist groups like the Electronic Frontier Foundation are arguing that people should be allowed to buy keywords and this activity is protected by a constitutional right to free speech.

It sounds to me like there are two issues at work here, but as is often the case with legal issues, it is not always black and white, but shades of grey.

Malice and forethought
Consider the plight of SecondAct.com. A disgruntled customer has been buying the firm's brand name on Google after a recent purchase. In short, a search for the company’s brand name turns up a listing for a website with negative information posted about the retailer.

"After exhausting efforts to resolve the customer's complaints, we contacted Google to request the listing's removal," says Mark Redetzke, chief operating officer, Second Act, LLC. "Google responded to let us know they were investigating the complaint within 24 hours."

The problem in Second Act's situation is twofold: First, the brand term is somewhat generic, and second, the advertiser in question is a blogger complaining about a product purchase. The term "Second Act" is just not as specific as "GEICO," so this would fall into a grey area. Or it might, if the advertiser wasn’t specifically targeting Second Act, the retailer.

Seven business days after contacting Google, the blogger was still buying Second Act's brand terms. Redetzke says that branded search terms account for 5 percent of the retailers overall revenue.

Protect your brand
The Lexus LS 460 campaign launch that was featured in February's Yahoo! Searchlight Awards included buying competitive keywords in the keyword search portion of the awareness initiative. Competitors’ product terms like BMW were purchased so that traffic could be directed to a mini site.

If your competitors are including your product names as a best practice, should you act? You bet.

You can start by keeping track of your brand term activity. For small-to-medium marketers working with limited budgets and resources, this means conducting searches to police the brand. For larger advertisers, search engine marketing firms and agencies offer services to help police brand term activity. A third option is hiring a third party that offers trademark protection services online such as Cyveillance, Inc.

When you find instances of abuse, you may contact search providers and most of them act quickly to help resolve the issue. Most search engines have a policy in place that will remove brand or trademark term violators.

Second Act was required to provide evidence of use for its brand names. Once that information was provided for the terms "2ndAct" and "2nd Act" along with "SecondAct" and "Second Act," Google notified the retailer that the request had been processed.

Search terms, advertising and public relations
The debate as to whether search sites should be held accountable for bad advertiser behavior rages on. The advertiser should be held accountable for their own actions and the argument of free speech and constitutional protection seems flimsy at best. 

"Search engines, as it relates to ad products, are media companies," Redetzke says. "I pay to place my link on the top of the page and that’s called advertising. Traditional media outlets often deny ad placements for competitive and defamatory reasons; I see no reason why search engines selling advertising should not uphold the same standards."

Should you take action when your site is being defamed by a disgruntled blogger? Your first action is to try to exhaust efforts to resolve the dispute as Second Act did. However, when bad behavior moves into the realm of trademark violations and defamation, the last resort is contacting the search engine for assistance and legal action may be required.

Kevin Ryan is chief executive officer at Motivity Marketing. .


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2010, December 15

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