Branding

When Search Engine Marketing and Trademarks Collide By Tommy Maric

In the world of marketing, branding issues are always an important part of any campaign. Companies work hard for their name to be recognized as a quality organization and a leader in their field. Companies will defend any action they see as a negative to their brand. They do not want unauthorized third parties to advertise their products, because they may do it in a poor manner which will generate negative consequences for the quality of the company’s brand. Recently, Google was charged with trademark violations by Geico and American Blinds. The cases (C 03-05340 JF US District Court For The Northern District Of California San Jose Division) have gone to the discovery phase of litigation, which means the judges have said there is enough there right now factually to potentially justify these lawsuits. The impact of this trial could be vast for search marketers.

A “trademark” is a word, symbol (i.e., logo) or phrase used to identify a particular product and distinguish it from other products in the marketplace. The degree of distinctiveness or uniqueness is what usually determines legal protection. Terms or symbols that are not unique to a particular product or company are generally not given protection. Generic terms are also not protected. The claims made by Geico and American Blinds are that Google’s AdWords program violates the law by allowing competitors to purchase keywords that are protected trademarks. Geico and American Blinds contest that by allowing advertisers to bid on their keyword that is in essence the same thing as selling the Geico or American Blinds name without their authorization.

Trademark law was instituted primarily to protect the consumer. When a customer sees a brand or logo, they associate a certain quality and expectation with that logo. If inferior companies were allowed to use the same logo and have worse products or services, the consumer would not know what to expect. With trademark law the consumer gets a degree of certainty and avoids confusion or unmet expectations.

According to lawyers this litigation could get very complicated. What Google needs to do is convince the court that there is no customer confusion with respect to keywords and how Google serves ads based on search queries. They will establish this most likely by running various consumer surveys. If successful, this would establish a legal precedent preventing future lawsuits of the same nature; however, there is big risk if Google fails. Ninety-five to ninety-nine percent of Google’s income is from its advertising model, and a ruling against it could be trouble for the company. If they settle, however, like Overture did then it sets no legal precedence, making it possible for other companies to make the same charges in the future.

Whatever the result, it is clear that in the coming months something will happen to search marketing. At the very least, Google will have to monitor trademark infringement a bit more vigorously; at the worst the company may lose a part of its revenue.

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