According to the New York Times an adviser to the highest European Union court recommended Thursday that some restrictions be placed on the rights of advertisers to use the names of rivals as keywords to generate sponsored links on Internet search engines.”
The New York quotes Kirsten Gilbert, a partner at Marks & Clerk Solicitors in London who said:
“With this opinion, Google’s customers may well reconsider how extensively they want to use a competitor’s mark as an AdWord,”
“The opinion was prepared by an advocate general to the European Court of Justice in Luxembourg, which is reviewing a lawsuit by Interflora, the flower delivery service, against the British retailer Marks & Spencer, which has a competing florist operation.”
There have been quite a few cases in the US dealing with this same issue and all have held so far that the search engines are permitted to sell advertising using trademark keywords, which of course is the direct opposite of what the law in concerning domain names.
There does seem to be a logical disconnect that one can buy ads under a trademarked keyword on a search engine but cannot on a parked domain without risking the loss of the domain.
we will face an era of growing restrictions restrictions restrictions restrictions restrictions restrictions
We did a campaign a while back for a midsized consumer goods company that wanted a large portion of their adspend budget dedicated to targeting people searching for terms related to their chief rival and their products.
Tried to warn them, but it didn’t go so well…
Consumer sentiment is funny. By the time people are searching for brand names as opposed to descriptive terms, it’s awfully hard to turn them back from what they want, short of libel.
I find that the brand of air filter I use is not good for my car – so I type in that brand in a search engine and a competitor comes up in one of the top 5 sponsored links – so I click on it.
If I am not able to readily get that kind of information – that spells anti-trust – which the EU is big on and so is the US.
At the end of the day with google and yahoo/bing getting eaten up bbit by bit by facebook, ebay, and other advertising models – I say anti-trust will prevail after trillions in legal fees are incrurred
According to the article —
‘The advocate general, Niilo Jääskinen, said advertisers should be blocked from buying rival trademarks as keywords if an ad “does not enable an average Internet user, or enables the said user only with difficulty, to ascertain whether the goods or services referred to in the ad originate from the proprietor of the trademark or an undertaking economically connected to it or from a third party.”’
— so we are not talking about a ban on the purchase of a competitor’s mark but perhaps some additional disclosure to minimize the possibility of consumer confusion. This may well be a reasonable approach — for both search engines and domains — that balances the consumer and competitive benefits that flow from access to comparative advertising while assuring that the consumer understands the source of the goods and services being promoted.
Case in point — if you go to Best Buy to look at laptops and you ask about HP but also get shown a Toshiba you benefit from the comparison. So what’s the harm in Toshiba buying seraches for HP laptops so long as I understand (duh) that it’s two different companies?
“So what’s the harm in Toshiba buying seraches for HP laptops so long as I understand (duh) that it’s two different companies?”
———-
It drives the bid higher for that keyword, which makes it significantly more expensive for that company to command the image of their own mark.
You’re looking at this from the perspective of a user, a domainer but not from the perspective of the business that actually writes the big checks to pay for those adspends.
Phil
Still don’t understand why Toshiba can buy adverting using a trademark terms like HP laptops but if they register the domain HPlaptops.com and advertise their own products they would lose the domain.
@MHB– The main problem is that you have the UDRP and laws like ACPA which start with the premise that a domain name that is identical or confusingly similar is prohibited, while you have broader trademark law going off in a different direction on keyword purchase cases. I suppose the policy justification for the tighter rules on domains is that they are more likely to create initial confusion for consumers, but that could be quickly dispelled by a prominent disclosure on the home page. (The case law on domains isn’t as tight if the purchaser of a trademark + keyword is not a competitor but an entity that actually provides a service related to it.)
@LS–The purpose of TM law isn’t to keep advertising costs low for a rights holder but to protect their goodwill and prevent consumers from being confused about the source of a good or service.
Besides, HP doesn’t have to spend a cent to have HP.com come up as the top unpaid search result when you type “HP laptops” into Google (try it).
And even if Toshiba couldn’t buy HP as a keyword, plenty of authorized HP laptop retailers could (e.g., Best Buy) and if you click on their links you will be taken to an online store where HPs sit side-by-side with Thinkpads, Toshibas, Dells, etc. and they provide simple tools for easy comparison of different models. So what have you achieved by prohibiting direct company-to-company competition?