Google to face AdWords jury trial

On November 9, Google will face trial over its AdWords programme, following allegations by American Blind & Wallpaper Factory that the system represents an abuse of US trademark law. Under the pay-per-click AdWords system, related adverts appear on a page of search results – it is very possible that by searching for a company, the company's competitor may appear as an advert next to the search results. In an April decision denying Google's motion to dismiss the case, the court ruled that the "evidence suggests that Google used [ABWF's] mark with the intent to maximise its own profit [and] ABWF has produced sufficient evidence of likelihood of [consumer] confusion [to allow the case to be decided by a jury]".

Kelley Drye & Warren, the law firm representing ABWF, and its lead attorney David Rammelt, said: "The downside of search optimisation based on use of trademarks is rarely discussed. The reality is that companies large and small are hurt when Google uses a company's trademark, without permission, for the benefit of the company's competitors and Google. This is the first time that a jury will have the chance to hear how Google's business model takes advantage of companies that have built the value of their trademarks through hard work and investment."

News source: vnunet

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When Google loses this or an upcoming trademark lawsuit, they will be impacted, but still very profitable. The majority of Adwords revenue comes from advertising on generic phrases like “window blinds” versus trademarks like “American Blind.”

Incidentally, some companies decide not to implement the current trademark policy because they may not have a vested interest in a reseller market, this choice should continue to be left to the trademark holder. The auto industry is a good example, and Ford does not implement the trademark policy on the trademarked phrase “used Ford F150″ because they encourage dealerships and aggregators to handle the used vehicle market.

What eventually will happen in the U.S. and Canada, and has already taken place in Europe, is that search engines will be required by law to completely prevent unauthorized parties from even placing ads on federally protected trademarks.

The real issue here is how “generic” can a phrase be to be allowed trademark status. Let’s look at the company, Discount Tire. People don’t normally search for “discount tire” unless they are looking for the company, Discount Tire. The generic phrase people tend to search for is “discount tires” with an ’s.’

This is where things can get heated. How does the USPTO determine if a phrase is too generic to be trademarked?

...frequently asked questions about the Google Lawsuit.

If you are searchinf for American blind and Wallpaper company, Then you allready know the name of the company and you just want the URL.

and even so the search engine won't know that this search is actually a string that's a company name, it sees "American+Blind+wallpaper+company" and find sites and ads matchign those keywords, wich would put the company most likely the number one hit, with other American Blinds and wallpaper companies further down, just like it would bring up ads for American companies selling blinds and wallpapers. It's what you're searching for afterall. For the consumer, I don't see it as a bad thing that the ads would bring up alternatives, and as a consumer I probably wouldn't look at them anyway, I allready knew who I wanted,I just needed the adress.


to avoid this, google would have to have a database of all company names, and when you search for strings that could be a company name, it would only bring up that as a hit and no ads. wich is not only bad for the consumers, it essentially breaks the search engine. Your searches will be useless, and they will be extrmely slow as it needs to go trhoguh this database as well. and no ads will be shown because there are so icnredibly many company names, you'll pretty much never have a search that isn't a company name or enough a part of one.

The issue is the technical challenge, if not impossibility, of filtering trademarks on a proactive basis.

If someone wants to advertise on a given keyword, if it's a trademark, there are several distinct possibilities:

-You are the trademark holder or representative thereof (We're Acme Widgets)
-You're using it in a fair-use manner (We Sell/Service Acme Widgets)
-You're a competitor going descriptively (A More Reliable Widget than Acme)
-You're using it in a field where the trademark doesn't apply (We're Acme Doodads)
-You're using it in competition. (Acme Widgets links to Amalgamated Widget Firm)

Only one of those is clearly an infringement. One is possible, but could be considered fair use.

And attempts to stop all trademark keywords would render the system unusable.

I'm on googles side here. Seems sort of rediculous to me. Any engine that uses text based results is liable to pull up a competitors product be it adwords or any search engine. At least in adsense google supplies means to filter out competitors ads.

If typing in Microsoft leads to an advert for Apple then that is wrong because the trademark is being abused, in this example to promote an opposing company. You should not be able to use a competitor's trademark to advertise your own product and if that is the case then Google is wrong. There is also the issue of confusion because ads are placed above search results - many people (including people I know) just navigate straight to them without thinking.

It is right that this is going to court and I think it could go either way - at least then it will be decided in law.

When Google loses this or an upcoming trademark lawsuit, they will be impacted, but still very profitable. The majority of Adwords revenue comes from advertising on generic phrases like “window blinds” versus trademarks like “American Blind.”

Incidentally, some companies decide not to implement the current trademark policy because they may not have a vested interest in a reseller market, this choice should continue to be left to the trademark holder. The auto industry is a good example, and Ford does not implement the trademark policy on the trademarked phrase “used Ford F150″ because they encourage dealerships and aggregators to handle the used vehicle market.

What eventually will happen in the U.S. and Canada, and has already taken place in Europe, is that search engines will be required by law to completely prevent unauthorized parties from even placing ads on federally protected trademarks.

The real issue here is how “generic” can a phrase be to be allowed trademark status. Let’s look at the company, Discount Tire. People don’t normally search for “discount tire” unless they are looking for the company, Discount Tire. The generic phrase people tend to search for is “discount tires” with an ’s.’

This is where things can get heated. How does the USPTO determine if a phrase is too generic to be trademarked?

...frequently asked questions about the <a href="http://www.semreportcard.com/how-trademark-protection-will-affect-google-advertisers-and-users/">Google Lawsuit</a>