Google hit with new lawsuit over ad keywords
Should companies be allowed to serve ads based on keywords that are trademarks of competitors?
(Credit: Firepond)About a month after an appeals court revived a trademark lawsuit over Google's keyword sales, another suit has surfaced in Texas.
Ars Technica spotted Firepond's lawsuit, filed Monday in Texas, against Google over whether Google should be allowed to sell keywords bearing a company's trademark to its competitors. A similar suit involving PC support company Rescuecom was brought back to life in April by an appeals court after initially being dismissed in 2006.
The issue is whether Coke, for example, should be allowed to buy keywords such as Pepsi and place ads for Coke products on searches for Pepsi. Rescuecom and Firepond argue that their respective keywords are an extension of the trademark they have acquired on their brands, and that Google should not be encouraging competitors to violate that trademark by using it to promote their own products. Firepond makes sales management software.
Google is willing to remove a trademark from one of its ads if it's in the text of the ad (Pepsi sucks! Try Coke!), but "we will not disable keywords in response to a trademark complaint," the company says in an FAQ about its trademark policies for AdWords. Its reasoning?
"Accordingly, our trademark policy not to monitor the use of trademarks in the U.S., Canada, the UK, and Ireland aims to provide users with choices relevant to their keywords. At the same time, we investigate trademark violations in ad text both as a courtesy to the trademark owner and to ensure that ads are clear to users." A Google representative declined to comment on the Firepond lawsuit itself, saying the company was still reviewing the complaint.
AdWords is the engine that has made many a Googler rich. The system allows anyone to bid on a given keyword and win placement on the top or right side of a search results page based on a combination of factors such as the size of the maximum bid for that keyword as well as the quality of the ad.
Part of the reason that this system generates the revenue it does is because the results are highly visible; much to the chagrin of a company outbid or outclassed by a competitor for a keyword pertinent to their business. In 2006, Rescuecom tried to make the further argument that not only is this aggravating, it's misleading to consumers who think they are going to learn more about Rescuecom's services when they search for Rescuecom, only to learn about the competition instead if they click on an ad generated by that search. The company will get the chance to make that argument again in the coming months after its suit in New York State was revived by a judge.
For now, the practice continues in the U.S., U.K., Canada, and Ireland. But Google has a very different policy in most of the European Union, reaffirming its intention to uphold complaints of the use of trademarks in keywords in prominent EU countries such as France and Germany when it announced an expansion of its trademark policy earlier this month.
Tom Krazit writes about the ever-expanding world of Internet search, including Google, Yahoo, online advertising, and portals, as well as the evolution of mobile computing. He has written about traditional PC companies, chip manufacturers, and mobile computers, spending the last three years covering Apple. E-mail Tom. 
In other words the same reason for the lawsuit.
My guess anyway.
If Coke wants to pay more than Pepsi for search results on Pepsi's own name, that's up to Google and Coke/Pepsi.
I wouldn't say it's fair, but I would say it's business.
Instead, only the trademark owner should be able to negotiate with Google over the cost of adding it as a keyword. Google can charge whatever it thinks is fair.
I think it is good for competition, as it allows me to find goods and services that are similar to the ones I am looking for. If I enter some company names or product names, perhaps it will help me find merchants that sell those products.
The whole idea is actually similar to an advertiser having an ad that compares its products against a competitors and names the competition by name. I see nothing wrong with that and never hear others complain.
I hope Google prevails on this one. I understand that Firepond might be upset that it has to deal with competitors, but that's just the way it is.
I started out by being wtih you but changed my mind when I thought about it. They aren't selling the word. They are selling ads keyed to the word. Nothing more. If I search for Coke and get a pepsi add, big deal so long as I also get the Coke search results that I'm after.
I started out by being wtih you but changed my mind when I thought about it. They aren't selling the word. They are selling ads keyed to the word. Nothing more. If I search for Coke and get a pepsi add, big deal so long as I also get the Coke search results that I'm after.
@badasscat
Funny you mention that. Coke and Pepsi both make it worth a businesses while to NOT carry the competing product. It's annoying when you are stuck with the brand you dislike because they struck a deal that limited my choice to the yucky stuff.
An interesting note here, searches for "Firepond" and "Firepond Configurator" on Google do not show any sponsored ads--at least not on May 13, 2009 at3:36 pm PDT.
- by Neotrope May 13, 2009 5:03 PM PDT
- I have written widely about this problem for a few years now, as my company has some better funded companies out-bidding us for keyword buys on our own trademarks registered in the U.S. and other countries. Where it becomes an issue is in places like social networks, which may have tiny ads, and then ONLY show the ad for a competitor in the context of original content from our company. So, it's like have a twitter page with a big adbox in the middle from our competitor -- it's really not cool. And the downside as a trademark holder is that we have to try to outbid our competitor for clicks in places where we don't need to necessarily show an ad simply to keep their ad from appearing, and which then takes away from our budget in attracting new business where we wish to be.
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- by t8 May 13, 2009 6:13 PM PDT
- Thanks for your interesting comment.
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- by Renegade Knight May 13, 2009 7:26 PM PDT
- Newbie and Troll here. If I'm tracking right, you are complaining that you don't have enough money to buy an add on a search term? In the context of search it's not a trademark any more than than an entry in a phone directory where your competitor can buy a nice fat add and have it inserted just above your company name.
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(13 Comments)I don't want to seem like posting spam in any way, but I did write a very topical article about this issue quite some time ago which details my own experience with both Yahoo and Google in this particular issue .... if you're curious to read my experience in low-key trying to get Google to change this policy, and their response, you can read my article by searching (ahem) on Google for my 2007 article:
"Contextual Counter Branding: Your Pizza is My Pizza ..." by Christopher Simmons.
Personally, I think Google should change this policy when requested to do so. They recently asked me to fill out a survey on how they were doing with advertising - and this was my only real complaint.
Considering so many people on the net don't understand how search engines and results work, or how ads work... I know many people who have gone to a competitor, got bad info, then a week later called and said "Can I talk to blah.... he told me blah..." to which I reply "huh?" The customer says "I called the first item in Google when I typed in your company name ... isn't that you?" ... "um, no...."
Google does cause confusion in this regard and we have well documented it as a problem for us. So, for the newbies and trolls who don't actually OWN any registered trademarks .... or who manage complex offline and online ad programs, you really don't know what you're talking about in saying it's not a problem and "yay google." I love Google, too, except for this one thing.
Just my thoughts anyway. :-)
You own a trademark. Not a search term. If your angst gets in the way of my use of google and search terrms then I'm opposed and rightfully so. Even if you don't think I've got a pony in the race.