Search ads trigger trademark lawsuit from rival

In a case that spotlights the growing importance of search engines to commerce, NameSafe has sued a competitor, LifeLock, for trademark infringement involving ads placed next to search results.

NameSafe, which like LifeLock sells services designed to protect customers against identity theft, alleged its rival used NameSafe's name in deceptive search ads on Google, Yahoo, and other search engines.

"The ads created by defendant deceptively contain the words 'NameSafe' and 'NameSafe.com' and those marks are often displayed as hyperlinks. Consumers following the hyperlinks are wrongfully and deceptively directed to the defendant's Web site," the suit said. "Thus, consumers are confused and mislead as to origin of NameSafe's services since defendant's ads result in the appearance of an affiliation between NameSafe and defendant."

This exhibit in the lawsuit purports to show a search for 'Namesafe' that shows Namesafe's name as the top sponsored result, along with a link to rival LifeLock's Web site.

LifeLock denied buying keyword search terms itself that use a rival's trademark, but blamed the issue on one of its 3,000 partners that resell its services.

"We have contacted our reseller network to remind them of the importance of compliance with LifeLock's requirements. We have been informed that a non-compliant reseller purchased the term 'NameSafe.' The reseller has subsequently been terminated," the company said in a statement. "LifeLock will not tolerate violations of our compliance guidelines from any independent reseller."

The suit, filed Wednesday in federal court in the middle district of Tennessee, also accuses Lifelock.com of violating the Tennessee Consumer Protection Act. Namesafe is seeking payment for damages and attorney fees and an injunction that would prohibit LifeLock from using Namesafe's trademarks confusingly in advertisements.

Search: Now a part of business
The issue shows the ever-increasing influence that search engines have over the business world. Because such sites are gateways that lead potential customers to companies, the commercial world naturally is powerfully interested in the search results, both the paid results determined by the winning bidders for search keywords and the "organic" results in the search engine itself.

One earlier paid-search controversy is whether a company may bid for a rival's name as a keyword. The NameSafe case sidesteps this particular issue, though: the company is objecting to the text of the ads, not the keyword itself.

A Yahoo search for 'NameSafe" on Friday included an ad that led to LifeLock's Web site.

LifeLock denied buying the "NameSafe" search term, "We as a company have never bought any branded search terms belonging to any other company. In fact, we have been the victim of many other companies trying to capitalize on the success of LifeLock by buying the term 'LifeLock,'" the company said.

But an exhibit in NameSafe's complaint shows ads that indicate somebody seemed to be winning bids for it. For example, the exhibit showed an ad sponsored accompanying search result that said "Namesafe. Proactive identity theft protection. Save 10% Today. Enroll Now. www.livelock.com."

Also, a search on Google for "NameSafe" on Friday morning showed an ad from LifeLock as the top sponsored result. However, later in the morning, no Lifelock-sponsored ads appeared.

Another Google and Yahoo paid-search response for the "NameSafe" search term was for Identity Theft Labs, which describes itself as "a contracted affiliate of LifeLock, LoudSiren, Debix, and TrustedId," four identity theft services.

Search trademark rules
Search engines have rules about use of another company's trademark in search ads. "Yahoo Search Marketing...requires advertisers to agree that their search terms, their listing titles and descriptions, and the content of their Web sites do not violate the trademark rights of others," Yahoo's rules say. "Advertisers are responsible for the keywords and ad text that they choose to use. Accordingly, Google encourages trademark owners to resolve their disputes directly with the advertiser, particularly because the advertiser may have similar ads on other sites," Google's trademark rules say. Both companies also offer mechanisms to lodge complaints.

But that process didn't satisfy Namesafe founder and Chief Executive David Ridings.

When NameSafe found the LifeLock ads, "We handled it with a complaint through the search engine informal complaint process," he said in an interview. "It did not have any effect. We had no other alternative but to file the lawsuit."

The complaint doesn't show any exhibits with a Google search, but the search ads were shown at the site, Ridings added. "We have evidence they were displayed on Google," he said.

The complaint process at the search engines didn't do the trick for Ridings, but the lawsuit apparently did. NameSafe filed its suit after hours on Wednesday, and it became public at 8 a.m. Thursday, he said. The ads were gone by 9 a.m., he said.

[brandverity]

Affiliate programs are increasingly becoming a challenge for merchants to handle. A certain level of policing and monitoring is required. We are about to move our PoachMark service into Beta - it provides a comprehensive search engine advertising monitoring program for merchants with affiliate networks.

http://www.brandverity.com

[jasontpopper]

It's really difficult sometimes to keep all the ads monitored. Lawsuits seem to be the solution to every problem out there, which isn't particularly the most pleasant option. But we should still be sure to stay away from bidding on trademarks to avoid infringing rights.

http://www.5identitytheftprotection.com