Keyword Advertising – to police or not?
On September 28th a judicial decision was handed down in Google’s favor, a decision impacting the multitudes of businesses that engage in paid search advertising. This decision, believed to be the first United States court ruling of its kind, declaratively states that search engines are not liable for trademark issues when delivering keyword advertising. In other words, Google will not be made to safeguard keyword advertising in regards to trademark infringement; advertisers will be responsible for their own messages. This is important for any and all Internet advertising companies, including my own ICMediaDirect.com, because we consider ourselves conduits of advertising and not safeguards thereof.
The complaint here is a company called Rescuecom. It was a little over two years ago when Rescuecom, a computer franchising business that offers repair, consulting, networking and Internet services, filed suit against Google arguing that the search engine violated its trademarked name, Rescuecom, by selling it to competitors as an advertising keyword. This means that someone using Google to search for ‘Rescuecom’ would be shown paid advertising by Rescuecom’s competitors. Therefore, competitors, in a seemingly unsporting manner, were using Rescuecom’s name to advertise themselves. While it’s not playing nice, is this illegal?
With respect to the biggest names in search, this has been an issue for Google alone to deal with. The next two largest search engines, Ask.com and Yahoo, have not allowed paid advertisers to use competitor trademarks as keywords.
Are these search engines employing an ethical stand that the “do no evil” Google doesn’t care to follow, or is it a strategic policy that buttresses advertising integrity? Or perhaps Ask.com and Yahoo wish to avoid the very legal problems that’s embroiled Google. Whatever the logic, advertisers like Rescuecom probably look kindly upon this protection.
Which brings us to Google. Now, to the casual observer Google is either coddling advertisers who wish to hitch a ride on the tails of the competition’s name or using its dominance in search advertising to override the seemingly minor beefs of advertisers in exchange for more business. A closer look, however, shows that Google’s take is perfectly defensible and, ultimately, good for the online advertising industry.
Google is not trying to police its advertisers. Google’s position clearly states that it is not their job to keep advertisers from violating the rights of competitors. They are simply delivering the ads. It is certainly Google’s job to keep offensive or harmful messages off their text ads, but not to arbitrate intellectual properties. This is the responsibility of the advertiser.
Google considers its advertising platform a means to deliver a message, a medium for the advertiser to use – hopefully in a responsible manner. Paid search is in some ways similar to conventional advertising. Imagine a company advertising on television offering a fraudulent product or service. Who is to blame, the false advertiser or the television stations that showed its ads? Clearly the false advertiser is the prime mover in such a dispute and would be the target of legal action.
When a company violates trademark laws when advertising, be it on a billboard or the Internet, it is liable for its own actions. This is not unreasonable and, in this case, lifts unnecessary burdens from the deliverer of the message. Important, too, in this decision, is the recognition that Google isn’t the entity “using” the trademarks per se, but that the advertiser is. Boundaries are being defined in the interactive space and a reasonable precedent has been set in this latest case.
