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Geico sues Google and Overture


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#1 cre8pc

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Posted 18 May 2004 - 03:39 PM

Geico sues Google, Overture over trademarks


The insurer charged the two companies with infringing on its trademarks when they sold them as keywords to Geico's rivals, so that the protected terms could appear in sponsored search results. According to the suit, that practice causes consumer confusion, in violation of the Lanham Act, the primary federal law covering trademark registration and protection.  

"This practice deliberately misleads consumers and allows Geico's competitors and these defendants to illegally exploit for their own commercial purposes Geico's investment of hundreds of millions of dollars in its brand," company spokeswoman Janice Minshall wrote in an e-mail.

The insurer is seeking damages and an injunction against Google's and Overture's use of its service marks in their advertising programs.



According to Geico's complaint, the insurer considered Google's policy change before pursuing legal action: "Google's recent change in trademark policy constitutes a deliberate decision to use the registered trademarks of other companies, including Geico, for the financial benefit of Google and to the detriment of (others)."

Google faces a number of lawsuits similar to Geico's. Louis Vuitton sued Google and its French subsidiary for similar alleged trademark infringement, and a French court ordered Google to cease the practice and pay a fine. In January, American Blind and Wallpaper Factory filed suit against Google in a New York federal court, alleging trademark infringement.


Seems like a lot of lawsuits for one brand new IPO about to birth.

Kim

#2 cline

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Posted 18 May 2004 - 04:40 PM

I hope Google and Overture prevail against this anti-consumerist lawsuit.

#3 bragadocchio

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Posted 18 May 2004 - 05:04 PM

Cline, I'm not certain that I understand your stance. A trademark infringement case is supposed to clear up consumer confusion.

In my opinion, a court is a perfectly good forum to determine whether or not there is actual harm to consumers from the actions of people and businesses.

Maybe you can explain further why you think it might harm consumers to have a judge decide whether or not there is trademark infringment going on.

I don't think just labeling this lawsuit an "anti-consumerist lawsuit" is enough.

One potential argument that someone might try to make would be that if Google was aware of ongoing trademark infringment through their service, and they allowed it to continue, they might be in some way responsible for harm to the trademark holder.

See: Keyword Sales Spawn Trademark Disputes

There's also quite a bit on trademark and trademark infringement at the Chilling Effect FAQ on the subject.

#4 cline

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Posted 18 May 2004 - 07:40 PM

bragadocchio said:

A trademark infringement case is supposed to clear up consumer confusion.


No, a trademark lawsuit is for the purposes of protecting the business interests of the trademark owner. Such interests may coincide with or oppose consumers' interests.

...explain further why you think it might harm consumers


Because it is an artifical constraint regarding the information that can be provided to consumers. To me it's no different from prohibiting grocery stores from providing consumers with coupons for products that compete with what the consumer has purchased.

#5 bragadocchio

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Posted 18 May 2004 - 09:48 PM

Why would a business bother being in business if they couldn't create a unique identity?

Why would they develop a brand if someone else could come along and use the very same package and product or service name?

Without trademarks, anyone could put forward brands that were developed and popularized by others who strived to earn good will by giving consumers respectible products and good customer service.

Without trademark protection, we would have only generic brands. There would be no economic incentive to develop a USP, because people would just steal it, and they would be able to get away with it.

My question asked what would be wrong with have a court and a judge decide. You didn't answer that question.


Your answer was pointed towards, what I think you see as a flaw, in not allowing people who advertise based upon keywords that might be trademarks.

I'll explain what I see as the harm in that.

An individual starts a business. He provides a service to the public, and people like the service. They tell friends. He starts to do well, and advertises. People start learning the name. Larger companies with much more money come up with a cheap knock-off service. They advertise using the small company's trademarked name as the keyword that triggers the ads.

The small business person can't compete with the larger company that is providing the el-cheapo service and showing up inthe paid part of the search results pages. The consumer ends up buying the crummy version, not necessarily knowing which version was which, but knowning which one cost less. The small business person goes out of business. The large company raises their rates because they no longer have competition.

The search engine encourages companies to bid upon their competitor's trademarked names. It provides more advertising opportunities for the search engine's clients, and the search engine makes a few bucks off the selling the trademark.

The consumer has difficulties telling if the paid results are from the same company that owns the trademark. The trademark owner asks the search engine to stop. The search engine has notice at that point that there is a trademark problem, so they can't claim a lack of knowledge. They continue to see the trademark, and continue to encourage people to buy other company's keywords.

#6 cline

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Posted 19 May 2004 - 11:03 AM

Why would a business bother being in business if they couldn't create a unique identity?


A unique identity is only useful in as much as it supports being in business successfully. A unique identity has no usefulness in and of itself, except for ego purposes.

Why would they develop a brand if someone else could come along and use the very same package and product or service name?


The case here is not about assuming a competitor's trade dress. Running an ad that is delivered when a competitor's name is searched on is not an impersonation of trade dress. I am certainly not against trademark protection.

My question asked what would be wrong with have a court and a judge decide. You didn't answer that question.


Because it's not an interesting question. It's a question about the role of courts in society, not a question about PPC advertising.

That's a nice-sounding heart-breaking story, but if a consumer who knows enough to ask for a product by name finds a product they like better due to advertising, it's a benefit to the consumer. Businesses exist to benefit consumers; consumers do not exist to benefit businesses.

This situation is no different from a consumer going into a store and asking the clerk for Brand X, and the clerk suggesting that they also consider Brand Y.

#7 cre8pc

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Posted 19 May 2004 - 01:07 PM

This situation is no different from a consumer going into a store and asking the clerk for Brand X, and the clerk suggesting that they also consider Brand Y.


If I paid a store to sell Brand X, but they recommended Brand Y to customers, I wouldn't be paying the store for very long.

If the store clerk holds up Brand X and Brand Y next to each other, and let's the customer decide without influence from the clerk, that seems fair. May the bathing suit that makes me look the skinniest win, I always say :shock:

I think many people equate search engines/directories as the equivilent of a store and assume they have certain rights.


Kim

#8 Respree

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Posted 19 May 2004 - 02:09 PM

A name or symbol secured by legal registration that identifies a manufacturer's or trader's product or service and distinguishes it from other products and services. Icons, company names, brand names, and packaging can all have trademark protection. Trademark owners have the right to prevent others from using the same, or a confusingly similar mark, but cannot prevent others from making or selling the same goods under a nonconfusing mark.


http://usinfo.state....pr-glossary.htm

Not taking sides here, but I was looking at it from Google/Overture's perspective. If unsuccessful in their defense, it seems to me that this could have the potential for a devastating blow to advertising revenues, not to mention setting a potentially unwanted precedent.

Even if the intent from trademark holders is to allow for legitimate business partners to market products/brand (i.e. affiliated companies, authorized sales agents, retailers, etc.), companies like Google/Overture would be forced to not allow this type of advertising. It is complicated further by them not knowing what is and isn't a registered trademark. Of course, they could look it up, but considering the number of phrases that could fall into this category, I imagine that task would be near-impossible.

#9 Black_Knight

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Posted 19 May 2004 - 02:42 PM

Lets simplify matters immensely by simply bearing in mind Google's true feelings, rather than their desire to sell trademark infringements for money. Google don't allow bids for the trademark 'Google'. That's their real feelings. Other companies feelings don't count for as much, sadly.

#10 cline

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Posted 19 May 2004 - 03:06 PM

Black Knight, I think you're mistaken. I run Adwords ads on Google's tradmarks.

#11 Black_Knight

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Posted 19 May 2004 - 07:34 PM

Ever had a bid approved for their company name? I haven't.

#12 cline

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Posted 19 May 2004 - 08:11 PM

Maybe they don't like you. They like me. You can find me here.

#13 bragadocchio

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Posted 19 May 2004 - 08:54 PM

This situation is no different from a consumer going into a store and asking the clerk for Brand X, and the clerk suggesting that they also consider Brand Y.


I'm trying to see this, but I can't help but believe that the owner of Brand Y is paying the clerk a few bucks to show consumers Brand Y when people ask for Brand X, regardless of how good or bad Brand Y is. The benefit to the consumer is immaterial.

#14 cline

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Posted 19 May 2004 - 09:08 PM

In a typical retail situation the store gets paid to sell both Brand X and Brand Y. Leaving out non-business reasons (e.g., clerk personally dislikes Brand X), the clerk may suggest Brand Y for a variety of reasons:

* Higher price => greater total sale
* Higher profit margin
* Easier to sell, customers like it more when they see it, so clerk is more likely to make the sell
* Greater customer satisfaction => fewer returns and repairs

#15 bragadocchio

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Posted 19 May 2004 - 09:43 PM

That may be a typical retail situation, but what your argument by analogy is attempting to describe isn't a typical retail situation.

That's one of the problems with arguing using analogies. What do any of those reasons have to do with a search engine?

The only reason why the search engine is showing the ad based upon the trademark is that the advertiser is stuffing the search engine's pocket with money.

#16 cline

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Posted 19 May 2004 - 10:10 PM

When the courts decide this they're going to look for analogies within existing trademark law. There is no direct precedent for what's going on in PPC.

Yes, Brand Y is giving Google money. They're also giving money to the retailer.

Another analogy is when you go to the grocery store and when you check out you get a machine-generated coupon for a product that competes with one you just bought. The grocery store is getting paid to deliver this, based on what brands you buy.

Another analogy, if a magazine's sales department knows that an review of Brand X is running in an upcoming issue, can they capitalize on this by selling ad space to Brand X's competitors? Can they offer to put the ads next to the article?

#17 bragadocchio

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Posted 19 May 2004 - 11:13 PM

As analogies go, those seem a lot closer to the mark. Good ones.

I think that what happens in those examples are fine because there isn't confusion over which company is which.

But I'm still wondering if there is consumer confusion when someone searches for a company by its name or trademark, and it's competitor's site is the one that shows up prominently on a search result as a paid ad. I think there is.

#18 Black_Knight

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Posted 20 May 2004 - 09:58 AM

They like me.  You can find me here.

Cline, please tell me you're playing Devil's advocate and joking when you tell me that you can't tell the difference between using a trademark in a phrase, and just using the trademark. :D

There's a great deal of difference in allowing company X to say "We're similar to Brand Y" and allowing them to bid directly for "Brand Y". The legalities center around improper use and customer confusion. So do the ethics.

Someone searching for "Microsoft" is probably, surprise surprise, looking for Microsoft - not just any company that sells a Microsoft product or who thinks they are somewhat similar to Microsoft, or once sold a sandwich to someone who worked at Microsoft.

"similar to Microsoft" could be fair use and an acceptable bid.
"sells Microsoft" could be fair use and an acceptable bid.
"Microsoft products" could be fair use and an acceptable bid.
But just "Microsoft"? Not really - which is the same reaction you'll get when you try to bid for just "Google".

#19 cline

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Posted 20 May 2004 - 01:32 PM

The phrase vs. isolated-use issue doesn't matter. Besides, I was advertising on just "google adwords" but the CPCs got so high recently that it become uneconomical. But look at how many ads there are on "google adwords". That's Google's trademark.

#20 Black_Knight

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Posted 20 May 2004 - 05:14 PM

How many times will I have to say "just 'Google'", (clearly and specifically stated thrice now), before you'll be prepared to concede the point?

#21 cline

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Posted 20 May 2004 - 09:07 PM

We must be talking about different things. I'm talking about advertising on Google's trademarks.

#22 Black_Knight

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Posted 20 May 2004 - 11:17 PM

I just like a direct question to be answered directly. When people avoid a question to better defend a viewpoint it simply makes me doubt it further. I guess we differ on more than just what we're talking about. I won't press you any further on an issue you obviously feel unable to contemplate.

#23 cline

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Posted 21 May 2004 - 01:38 PM

I'm sorry, Black Knight. I appear to be unintentionally frustrating you. Let me try to clarify.

I do for a fact know that Adwords permits advertising from US-based advertisers on the Google trademarks of "google adwords", "adwords", phrases including those terms, and other phrases that include the term "google". Because I know these to be true and have evidence for this, this is what I've presented here.

I do not know about targeting the single word "google". I've never targeted just that term. I don't have a campaign that I think is relevant to that term and can sustain Adwords' minimum CTR requirement.

One does need to consider in this issue the difference in our locations. You're in the UK and I'm in the US. There is a difference in the trademark laws between these two countries. Adwords is continuing to prohibit advertising targeting trademark terms in the UK. There are things that US advertisers are allowed to do that UK advertisers are not allowed to do.

Now, maybe Google is handling the singular trademark word "google" differently from how they handle their other trademarks. I do know how they handle their other trademarks and how they handle phrases including "google". If they are handling just "google" differently (in the US), yes, I would agree with you that it would be hypocritical for them to do this.

#24 Respree

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Posted 21 May 2004 - 02:03 PM

Now, maybe Google is handling the singular trademark word "google" differently from how they handle their other trademarks.

Hi cline.

Not sure if this is the reason for the different treatment (Google vs AdWords), but 'Google' is the only registered trademark of Google, Inc., whereas the others only have pending registrations. I'm guessing, but perhaps this is the distinction.

Source: Google's S-1 Registration Statement.
"Google® is a registered trademark in the U.S. and several other countries. Our unregistered trademarks include: AdSense, AdWords, Blogger, Froogle, Gmail, I’m Feeling Lucky and PageRank."
http://www.sec.gov/A...4073639/ds1.htm

#25 Black_Knight

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Posted 21 May 2004 - 10:40 PM

You know, the other day when I checked, I'm certain there were adwords bids for Yahoo, MSN, Microsoft, Lycos and many others. Today, having checked, only Microsoft of those still has adwords ads showing. But they missed Hotbot, because that too has one lone adwords campaign.

Interesting stuff.

#26 janeva

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Posted 23 May 2004 - 10:28 PM

for all of you trademark buffs out there or people generally interested in the subject --- > you should take a look at this <------ I will let you figure it out: Just type in "janeva" into Google. Javeva Corporation has been using Janeva aggressively since 1997 and the company which you will be sure to figure out immediately started using the Janeva name as their own in 2003. Corporate identity theft in its finest form!!!

"Don't have a great name for your company or product, just steal one from a small company and outspend them in attorney fees and legal hassles".

#27 cline

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Posted 26 May 2004 - 06:31 PM

Black Knight, I think you'll be pleased to hear the following.

To address your question about whether Google Adwords would allow advertising on "google" -- just that word, not in combination with any other -- I tried it. I also contacted my Adwords dedicated rep when the ad didn't start running. Here's what I heard back from Google Adwords:

Google AdWords does permit the usage of keywords containing the word 'google' and with trademarks like 'google adwords.' The only exception is the usage of 'google' by itself. Our Editorial Policies do not permit ads to be triggered by the exact  keyword '[google]'. ... our Editorial Team ...  won't make any exceptions to this rule.



#28 bwelford

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Posted 26 May 2004 - 07:19 PM

Welcome to the Forums, janeva. :wave:

The US Trademark Office database information states that Borland owns the Janeva Trademark and the writeup suggests that they have been using this in commercial use since 4 February 1997. Is there something wrong with that information?

#29 bragadocchio

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Posted 26 May 2004 - 08:28 PM

Hi janeva,

Interesting, Barry.

While the federal registration is helpful when someone wants to try to prove they own a trademark, it's really necessary to look at the first use of the mark in commerce. There's a provision in the federal statutes that state that. But that can be really hard to do.

The difficult part about not registering a trademark is that you have much more difficulty in proving that first use in commerce. Of course, there could be a state registration somewhere, too. :)

Unfortunately, the forum here isn't likely to be the place where this will be resolved. Absent communication and a meeting of the minds regarding usage of the phrase, issues such as trade mark do often get resolved in court.

Registration of a trademark with the federal government is a great way to protect it, and I'd recommend it if the mark is important to its user.

#30 Black_Knight

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Posted 27 May 2004 - 04:32 AM

Cline, thank you so much for the follow up on that. That's the exact point I wanted understood.

I do find that Google's attitude in protecting their primary (company name) trademark is fair, but is entirely disagreeing with their practices concerning the company names of others.

Bids for phrases that include the name are fine. Even where the phrase contain only a second trademark or service mark. Your example of "google adwords" was one such. A phrase like "microsoft windows" would be another. I think that's fine.

I think bidding on the 'name of a company alone' thing is wrong, and is indeed likely (if not outright designed by the bidder) to create confusion.

Google obviously agree when that company name is their own, yet allow it for any other company. That, to me at least, stinks of hypocrisy. :)

#31 dgcccomllc

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Posted 31 May 2004 - 11:05 PM

I'll bet that if a blatent competitor to google tried to use the "google adwords" as a keyword (say overture), google would exclude them.

Google has an obvious double standard.

If someone searches for information on my trademarked product name, I don't want them to see competitors. I have spent a considerable amount of time and money making my name known (direct mailing, e-mail, tradeshows). Why should my competitors reap the benefit of my product name.

Google is CLEARLY aiding in the violation of trademark laws, and I hope they get flamed hard. In fact, I currently have three competitors who have taken it upon themselves to put up adwords with my product name. I'm actually looking to make some waves with these competitors very soon. I have to protect my trademark.

#32 projectphp

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Posted 01 June 2004 - 12:13 AM

Google obviously agree when that company name is their own, yet allow it for any other company. That, to me at least, stinks of hypocrisy

OK, I'm late in on this one, but I have been thoinking about it a lot and I have a question: does the usage of a one word trademark change things? It is often argued that it is almost impossible to ascertain intent of a searcher from a one word search. A search for some trademarks may in fact be a search for that product range.

As examples, Microsoft sells products that are collectively refered to as Microsoft, making the Microsoft Brand tied inherently tied to a product range. Due to this, the question "what OS do you use" could be answered with the one word "Microsoft". As such, Microsoft is, in a roundabout way, a product, and one with authorised resellers.

Similiarly, the one word Hilton is a hotel chain that is, in part, sellable. "Where did you stay?" "Hilton".

Google, on the other hand, is a place to search. No one authorised to sell anything just "google", in fact it isn't even a product that can be purchased. Adwords, sure, there are resellers. AdSense, sure, you may have an AdSense related product. But Google?

I know this confuses the issue even more, but some one word trademarks, even one word trademarked company names, are inherently seem as products. Perhaps the best example of all is "coke". Coke is almost considered a flavour in itself. I have ordered a coke and often received a Pepsi or generic Cola brand. Some one word trademarks simply replace the generic term for what they are.

The intent of a Trademark is to protect a business. Surely having reseller ads, that is people with a vested interest in pushing and building a brand, show for a search on a trademark makes good business sense.

The issue, all round, is where to draw the line. I can see where disallowing some trademarks opens a flood gate, and why SE would fight this. Similarly, I can see the other side. I just hope when the dust settles sanity prevails, and tight restrictions are not enforced.

#33 cline

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Posted 01 June 2004 - 02:57 PM

Here's another bit of Google hypocrisy....

I've got a client with a site that publishes articles. He wanted to test whether Adwords could be used to jumpstart his traffic. Since he's got an article on the Google IPO, he thought that would be a good one to try.

Adwords' system is designed to automatically prevent the word "google" from being used in an ad -- so you can't even advertise that you have an article about Google.

#34 Black_Knight

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Posted 05 June 2004 - 01:17 PM

I have a question: does the usage of a one word trademark change things?

Having considered it for a long time, I think that it does.

Many merchants can sell/resell Microsoft Windows, Panasonic Televisions, Sony Playstations, Hotpoint Washing Machines, or even Google Adwords. Very few companies can sell you Microsoft itself, Panasonic itself, Sony itself, etc.

Oh, a few companies can sell you shares in those companies/brands, but that is most definitely not the same thing as selling you the company/brand itself.

It is a very important distinction.

<Added>
It is not the 'one word' status that is the issue. Adwords is one word, Windows is one word, Playstation is one word. Those are okay. Those can be sold/resold/supplied, which is almost certainly what the searcher is looking for. Many folks may have those one-word trademarks legitimately ready to supply.

The issue is the brand identity itself. Some phrases more clearly identify you with the brand than the product, and that is the part that is in question. "Microsoft reseller" or "Microsoft Dealer" are both okay, but "Microsoft" is something else. They are looking for the company, by name.

When we all know how many folks search for "yahoo.com" or even search for "www.hotmail.com", we can be pretty sure that the majority of folks searching for "microsoft" are looking to find the microsoft homepage, not any reseller, affiliate, or anything else.

#35 cline

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Posted 23 June 2004 - 07:32 AM

Google has ended their hipocracy and is now permitting ads to run on just the term "google" -- based on official word from Google Adwords, and confirmed by my actually doing it.

#36 Black_Knight

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Posted 27 June 2004 - 11:57 AM

Good to know, cline, and it will certainly help put them in a stronger position with all those law suits they are embroiled in.

#37 ac

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Posted 27 June 2004 - 09:56 PM

The sad fact is that the Trademark law states that if a company or Trademark owner does not defend the violation of the mark, the Trademark can become public domain.

So to maintain a Trademark you must defend the mark from others using it improperly. Part of the Trademark law states that you MUST police the mark for it to remain a Trademark, that is why companies go after even the smallest violation.

Google themselves are in danger of losing their rights to Google since it is becoming established as a slang term or common word.

Google can not highjack these Trademarks, then send the business to the competition based on a search for the Trademarked term and get away with it forever.

The same thing happens to webmasters when they use ADSENSE, many times the customer finds a different vendor right on the site he originally went to buy something on.

#38 bwelford

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Posted 28 June 2004 - 04:38 AM

Welcome to the Forums, ac. :wave:

You've pointed out an important truth there. However I think it's so costly to defend your trademark country by country, that you can't afford to pursue the legal route. For me a trademark is more a statement to the world that this name is already used by someone so why not think of a different name for your business.

#39 bragadocchio

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Posted 28 June 2004 - 05:18 AM

Hi AC,

Welcome to the forums. I think we both subscribe to the same school of thought regarding trademarks and Google.

The international problems associated with registering and protecting a trademark were lessened in the US with its participation in the Madrid protocol. Here's a short article about US protection. The article is a couple of years old, and was written before the protocol took effect in the US, but it seems to cover many of the bases regarding what it means.

http://www.oblon.com...idProtocol.html

Here's a link to the protocol itself:

http://www.wipo.int/...guide/index.htm

There are at least 76 States that are signatories to the protocol, so it covers a pretty wide area.

I've also seen someone posting on at least one forum that the American Blind litigation is over. I think that was wrong. The last time someone made that statement, both lawsuits between Google and American Blind were still proceeding forward - the one initiated by American Blind, and the subsequent suit by Google on the opposite coast.

#40 bwelford

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Posted 28 June 2004 - 07:07 AM

As I said earlier, I wonder whether trademarks can really be made to work internationally. If you'd like some "out of the box" thinking, check what I wrote on this matter in a blog entry this morning. It's entitled "Move over trademarks, here's intermarks".



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