Paid search ads on Google and Overture have become popular tools for web hosting providers seeking to attract customers of distressed competitors. But the practice of purchasing a trademarked term as a keyword is coming under fire both in and out of court, raising questions about the future of paid searches pegged to competitors’ brands.
A French court last week fined Google France 70,000 euros (a little over $80,000) for allowing advertisers in its popular AdWords program to buy text ads tied to French phrases for “travel market” and “airflight market” which had been trademarked by two travel agencies, Luteciel and Viaticum.
US law offers significant trademark protection for unique company names, which appear to figure in paid search campaigns targeting customers of troubled web hosts. A Google search on FeaturePrice, for example, returns a results page with text ads from multiple competitors of the struggling provider, bearing headlines such as “FeaturePrice Rescue Site” and “Stranded by FeaturePrice?” FeaturePrice saw 70 percent of its hostnames migrate to other providers after lengthy downtime this summer.
Cable & Wireless, which in June announced plans to exit the US hosting market, took issue with several competitors’ online text ads. C&W’s legal team contacted several that “characterized our June 4 news incorrectly, claiming that we’re ceasing operations,” according to company spokesman Chad Couser.
Some trademark holders have taken their case directly to Google. In June, eBay requested that Google halt the sale of pay-per-click ads tied to the company’s name and a number of trademarked variations, saying it acted “so that third-party advertisers do not abuse the intellectual property of the company.”
Google has not commented publicly on the eBay request. But its complaint policy offers recourse for companies that believe their trademark is being infringed. “When we receive a complaint from a trademark owner, our review is limited to ensuring that the advertisements at issue are not using the trademarked term as a keyword trigger,” Google states in the policy. “If they are, we disable those keywords from the ad campaign.”
Several US companies have filed suits similar to the French case. Mark Nutritionals gained media coverage with its in 2002 suit against Google, Overture and several other other pay-per-click search engines for selling ads tied to the term “body solutions,” which Marks trademarked. Marks has since filed Chapter 11 and agreed to be liquidated.
These cases mine many of the same issues aired in a flurry of lawsuits in the late 1990s over the use of trademarked terms in HTML meta tags, which use keywords to describe the site’s content for search engine spiders. Most of the suits related to meta tags were settled out of court. Playboy succeeded in several suits against infringers, but lost a court battle with former Playmate Terri Welles. The US Ninth Circuit Court of Appeals ruled in Welles’ favor, saying the trademarked terms “playboy” and “playmate” in her meta tags “accurately describe the contents of Welles’ website, in addition to describing Welles.”