Adwords and Company Names Options

[ILoveJackDaniels]

The company I currently work for are very well known in the dance music industry. I've been working on getting them better indexed (and so far it is going well - providing an alternative to javascript has taken them from 300 pages listed in the google serps to over 27000 in under a week), but I've noticed something a bit strange while working on this.

Whenever I search for the company name, a rival appears in the adwords listing. They literally only appear there when I search for the site address. Searching for just "Juno" doesn't bring the competition up, but a search for "juno.co.uk" does.

Is there anything that can be done about this? Is it something I should be in the least bit worried about? I know nothing about the legalities of this, but hate to think this other company is making money by catching unwary visitors looking for us ... almost seems like they're trying to make money off our reputation.

[stripey]

well when i search for juno.co.uk i get a page saying google can't find any results for that site etc etc and have to click through again to get to the SERP so thats one barrier to any punters the sites fishing for.

if someone does click through they are going to see the juno.co.uk site in the natural search results on the left first. that result is much more relevant looking as it obviously has the correct domain.

if they do spot the paid listing its not actually mentioning juno.co.uk in the ad so it looks less relevant.

last of all, anyone searching for the URL knows the site they are after, right? they're just not quite savvy enough to use the addressbar

i guess this is my (long winded) way of saying i doubt they are getting that much traffic from advertising on the domain so don't sweat the small stuff.

[ILoveJackDaniels]

I'm not going to lose any sleep over this, as you are right, it's not going to make a world of difference to our sales. However, it is a thorn in the side and if I can do something about it, I would like to. There are other phrases being targetted by these people too (for example "juno records").

I'm also quite curious from a more general viewpoint. I've seen this sort of thing happen before, and would be interested to know for future reference if anything can be done about it ...

[stripey]

well I guess there is always the polite but stern cease and desist letter / email / phone call?

i think you might have some legal grounds to ask Google to put a stop to this if Juno or Juno Records is a trademark.

frankly, it's not my area of expertise.

[bwelford]

The problem is bound to arise if you have a fairly common name like Juno. Checking the UK Trademarks office shows quite a number of trademarks starting with Juno. If you look up company names at Companies House, you will again see quite a number of companies with rights to a name including Juno.

In such a situation, a Google search may well bring up lots of other entries. Google.co.uk shows me 2,520,000 web pages for 'juno' and 197,000 web pages for 'juno records'.

My usual advice in this situation is to choose some variant of the name that is unique. Then put all your energy behind that new name. Ideally you want a situation where, when someone types your company name in the Google search field, references to your company are the only web pages that come up.

It's not too difficult to do. However my track record in getting companies to change to a new operating name is not very good. People get an emotional attachment to their company name that far outweighs any profit motivation.

[ILoveJackDaniels]

I can't see them changing, sadly, Barry, but interesting idea.

We are actually ranked number two for "Juno" and one for "Juno Records" - there's no real problem there at the moment. The problem lies with the AdWords on the side of the Serps, where the company name is being targetted directly by two companies who have nothing to do with Juno.

[bwelford]

It's going to get worse, if anything, Dave. On Tuesday, April 13, there was this news item that shows that Google is going to allow Adwords users to buy competitive trademarks.

[ILoveJackDaniels]

Damn. Thanks, Barry. That article is a good read!

I'm surprised that Google would make that kind of move. Sure, there's bound to be money in it, but I can't imagine that the money they'll make will cover the amount that this is almost sure to cost them in court!

However, for Juno at least, this looks like a grin-and-bear-it situation.

[bwelford]

Actually, Dave, looking into all this a little further, I think the company has already done a lot of what is needed.

They have the domains, junorecords.com and junorecords.co.uk. Both are redirected by 302 redirects to juno.co.uk. 301 redirects are probably better for PageRank purposes.

However I think the company should go all out to be known as JunoRecords (without the space). There are only 74 web pages listed and I would guess they're all about your company. There are no Adword ads on the page. Until the competition finds out, you have SERP's here that have no hint of the competition.

[bragadocchio]

\"Google can't be a multibillion-dollar company if they disable trademarked keywords at anyone's request,\" said Eric Goldman, a law professor at Marquette University, who has followed legal issues related to search engine advertising.

I'm not sure that he had his first cup of coffee yet the day he made that statement. Seems that they are worth that kind of money already, and there was the possibility that they had been disabling trademarked keywords at the trademark owners names.

There's a bit of a misleading edge to the way that Google's press office or the media is portraying this. Trademark infringment is still trademark infringment, regardless of whether or not Google has proclaimed that they will ignore requests to stop the use of sales of keywords that are competitors trademarks.

Google could find themselves on the receiving end of quite a few process servers deliveries.

When someone searches for a unique trademark and the paid results at the top of the page are the trademark owners competitors, it has the potential to really harm businesses that can't outbid their competitors. It also raises the potential cost of advertising or the trademark owner. It also stands a good chance of confusing consumers.

I know nothing about the legalities of this, but hate to think this other company is making money by catching unwary visitors looking for us ... almost seems like they're trying to make money off our reputation.

It might be a good idea to contact an intellectual property attorney. He or she can give you an idea of whether or not you have a case. Before you do, you might want to find out which companies are doing that, and collect screen shots. If you can find addresses for those businesses, and if they have listed addresses for their corporate counsel, write those down. Check to see if they are doing the same thing at other Search engines, too. Collect those screen shots. Write down when they are from, and where you were when you took them.

The attorney you talk to might have more suggestions, and you should ask what you can do to help.

The chillingeffect FAQ on trademark is worth a visit. Not so much for their discussion of American law, but for general definitions of such things as trademark, and trademark infringement and contributory trademark infringement.

There is such a thing as contributory trademark infringement.

[rustybrick]

Google clearly stated that they will allow for competitors to purchase your brand name as a keyword BUT the competitor can not use your brand name within the ad text.

Legally, I am not sure how much of a distinction that is.

When I attended the Leggo My Trademark: A Search Engine Legal Update at the SES NYC conference, they tried to explain this somewhat gray area.

"Trademark infringement is use of another's mark that is likely to cause consumer confusion, or to cause mistake, or to deceive as to source, affiliation, sponsorship, origin or approval."

Now, maybe Google feels that by not allowing the use of the trademark in the ad text, it will not cause confusion?

[bwelford]

I'm still confused here. I guess lawyers have to huff and puff if their clients pay their fees. ... and judges don't always get it right. However from the chillingeffect FAQ I see the following:

The person who establishes priority rights in a mark gains the exclusive right to use it to label or identify their goods or services, and to authorize others to do so.  
....
Trademark owners do not acquire the exclusive ownership of words. They only obtain the right to use it for commercial purposes and to prevent competitors in the same line of goods or services from using a confusingly similar mark.  
...
Owners of famous marks have broader rights to use their marks than do owners of less-well-known marks. They can prevent uses of their marks by others on goods that do not even compete with the famous products.

So I'm allowed to say the word Sony, I just can't use it as part of the name of one of my products.

So I have a small Adword ad that describes my products and does not mention Sony. I choose to pay for this to appear if someone types in the word, Sony, in the Google search box. In what way am I infringing on Sony's rights in the trademark. Am I missing something? :?

[bragadocchio]

Nice blog post.

I liked this suggestion especially:

What should an SEM company do to avoid this?
- Avoid using Broad Match blindly (use negative terms, exact match and other options)

The distinction is a questionable one. It may be more clearcut that using text in the body of the ad is possibly trademark infringment. It may be a gray area when it comes to Google's potential liabilities when companies use their competitors' trademarks as their adword choices.

So I have a small Adword ad that describes my products and does not mention Sony. I choose to pay for this to appear if someone types in the word, Sony, in the Google search box. In what way am I infringing on Sony's rights in the trademark. Am I missing something?

It could be argued that you are using the trademark in a manner which may confuse consumers to enable you to gain profit. You purposefully use your competitor's trademark to draw traffic to your site.

If you were to search for Linux, and all of the sponsored links were Microsoft, how would you feel about that? Or go to a web site about Linux which also had adsense ads, and all of the ads were Microsoft ones, how would you like that? Would the average consumer know that Linux wasn't a microsoft product? It would likely confuse some of the less technically savvy.

[bwelford]

Funny you should say that. I did a Google search for Linux and here is the first Adword ad:

Sponsored Links
 
Linux News
Why is Windows cheaper than Linux?
Get all the facts Now!
www.microsoft.ca/getthefacts

They even mention Linux in the ad. Will a typical consumer be confused as a result? I doubt it. We're all used to ads around us and many of them are tuned out. As the Romans used to say, Caveat emptor. :roll:

[bragadocchio]

Interestingly, that one isn't showing in the US.

Caveat emptor - let the buyer beware, is a doctrine that's been shrinking for years and years. Thus we have consumer protections such as warranties on products, and contracts with consumers that have extremely harsh provisions in tiny print overturned in courts. One sided contracts where a company has all of the power, and consumers have no say are referred to as adhesion contracts, and they stand a chance of becoming unenforceable when brought to court.

The courts do uphold trademark infringements cases when there is consumer confusion, and a caveat emptor defense is possibly a good way to lose a case in court.

There's a difference between tuning out an ad and being confused by it. I can tune an ad out, and still be confused by it. The one you point out is showing a comparison between windows and linux. Look at that chillingeffects FAQ again in the section dealing with the limits of trademark and nominative fair use.

If you asked most people, rather than people who are actively engaged in making money through services they offer online, who manufactures Linux, do you think that they could give you a list of Linux distributors? As far as most people know, if they had even heard of Linux before, they might guess that it's a microsoft product.

[rustybrick]

I was under the impression that trademark law is more strict in Europe then in the US.

Anyway, based on my understanding, it is not confusing to the user to show a comparison (biased or unbiased) between two products.

Linux versus Windows

As long as they dont say, buy Linux and it takes you to a Windows XP page.

[bragadocchio]

Even a comparison has some limitations. But, I'll spin this conversation on its head a little.

The FAQ describes nominative fair use, and lists three rules for the use of a comparison like that. There's some more discussion of nominative fair use here:

http://www.ivanhoffman.com/fair4.html

(1) The product must not be readily identifiable without use of the mark; (2) only so much of the mark may be used as is reasonably necessary to identify the product; and (3) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

If google is going to remove any adword ad that uses a trademarked name in the text upon request, are they going to make it impossible for people to use that nominative fair use?

There was a little on that discussion from last August over at the trademark blog:

EBAY, Google, Paid Search, and Nominative Fair use.

[rustybrick]

Enforcing this is going to be a pain for Google.

New article on this at http://searchenginewatch.com/searchday/art...cle.php/3340461

[cline]

Google's rules on this are different for the US/Canada that elsewhere. I have a UK client that has had competitors target the client's trademarked name for running Adwords. There are some forms you can fill out to demonstrate that it is your trademark and -- in the UK -- Google will force the competitor to stop advertising on your brand name.

[Black_Knight]

On the specific question of the specific case, rather than the broader issues of bidding on Trademarks:

Dave, the company is bidding specifically on the domain name but are not in any way trying to pass themselves off as Juno, partners of Juno, or connected with Juno by anything but related relevance. I think that does make a difference.

Overture will only allow bidding on a Trademark if the term actually appears legitimately in the content of the page too. I've tended to think that is a smarter approach.

The reason for Google's obtuseness on this particular matter seems to be their eternal predeliction to automate everything. They haven't yet worked out how to automatically determine appropriate and inappropriate use of trademarks so are simply going with whatever makes them more money until/unless the courts force them to spend man hours on what their automation cannot handle.