Trademarks Revisited

I wonder if Google is expecting a little snow or a blooming great avalanche?

Well the landmark ruling on Trademarks in favour of Rescuecom.com against Google just might start an avalanche of lawsuits and change the face of AdWords.

Rescuecom.com suggested that searchers entering “rescuecom” into Google were trying to find them and not their competitors who were bidding trademarked phrase.

Cutting a long story short the court agreed and admonished Google for allowing the competitor bids. It will now be interesting to see if intermediaries between customer and brand (like search engines) now declare trademarks to be “off limits”  – just too great a risk of attracting legal action.

If so, brands may save a little money on advertising and perhaps attract a few more visitors, but we may all be a little worse off.

Consider an example. If you used Google to search for Starbucks and among the “sponsored links” that may have appeared in response a link to highlight Starbucks grey business practises in Columbia from an environmental group that supports the rights of low-wage workers.

The group deliberately chose the trademark to trigger its ad because it is highly critical of the practices of Starbucks and thought you might like to learn more before you buy the next cappuccino.

Or consider a consumer seeking comparative information on hybrid vehicles, searching on the (trademarked) term “Prius”. That consumer might like to know about Honda’s hybrid offerings (did you even know Honda sold hybrids?)

After this ruling, the threat of litigation may make Google hesitant to let Honda buy a “sponsored link” triggered by the term “Prius”.

The ruling does not say that buying or selling a trademark as a search keyword necessarily infringes the trademark and that the trademark owner still must prove that consumers are confused, but I see zero advertisers on Rescuecom.com today so perhaps the mighty Google are running scared.

We have competitors of iCrossing clients bidding on trademark terms like Ann Summers, represent themselves as “Amm” Summers, so if it stops that flagrant mis-representation then its good, I’m just not so sure about the rest…

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