More Lawyers In The Way

The issue of law, trademarks, & Adwords came a few times at the show. At one session I asked if pending trademark rulings were one of the risks the market faced. Not surprisingly, the answer was that Google respects trademarks and didn't see it as a huge problem or risk. Ha.

There was a full panel on the legal issues, but I wasn't able to attend. The slides from that one aren't up yet, so I can't provide any insight from those either.

Dana Blankenhorn at Corante recently wrote and linked in two posts on the American Blinds and Wallpaper lawsuit, which anyone interested in the future of free or paid search should be aware of. (Disclaimer: I happen to be an old high-school friend of the ABW CEO.)

In his first post, Dana says "If Google can't sell ads next to trademarked content, then all advertising is illegal." That's probably overstating it a bit, but it does suggest the can of worms that is this mess. He also correctly blames Google for already giving in to Dell (and Ebay and others) which sets a horrible precedent.

BTW: The irony of Ebay banning the use of its trademark while earning millions operating a search-and-find website using the trademarks of thousands of other companies is just too funny. What if Sony told eBay that they couldn't allow Sony searches because some Panasonic TVs were coming up in the results, which are after all paid results?

This is exactly the problem here, the guilt by association never ends. If I can't buy your trademark in a search engine, can I build a restaurant next to a McDonalds - isn't that the same thing. Don't they put Lowe's next to Home Depot to leverage the brand and ad spend of their competitors. Isn't a lot of comparitive advertising a way to leverage a stronger competitor? But doesn't it also benefit the public a lot more than banning it would? And isn't there a free speech issue here?

I understand why ABW is angry. They're being taken advantage of. Competitors are riding their coat-tails. But really the companies buying these words are just competing. And while it may be a new way to compete, it does not seem unfair or in any way fraudulent or misleading. The only harm that could come to ABW is the harm of losing sales for competitive reasons.

I never like it when people start banning things that were always possible just because they've become efficient. Another clear problem with all this is that very soon buying competitors keywords will be less necessary, because the 'broad match' technology in each of the paid-advertising systems will know that if you sell computers that a search for 'Dell' is a match and put your ads there automatically. And as Dana's article mentions, if you can successfully block related paid ads, how many days will it take until the court action begins to block related free/organic listings?

Misrepresentation, fraud, slander and all such similar activity is and should be illegal and prevented. Speaking, comparing, contrasting, and categorizing isn't illegal and should not be limited.

Posted by Craig Danuloff at March 9, 2004 12:13 PM