The Geico case with regard to Google. - Oral ruling to be followed by written opinion - Google's motion for judgment granted with regard to paid listings triggered by GEICO mark but did not include TIM in title or copy - Judge also held, however, that paid listings triggered by the GEICO mark that included the GEICO mark did constitute TM infringement - Second phase of trial will determine Google's extent of liability & damages for this second category of listings - Fed court decision - non-binding precedence may influence future case.
If you do not find "use" for trademark use, then there is not trademark issue. So Google/Overture said that they allow people to bid on it, but there is no use in the ad text. Most of this basic information is in my coverage of the past SES conference.
Through this session Jeff Rohrs (moderator of session) put up slides on some definitions of trademarks, google's policy and overture's policy.
What is the difference between a "brand" and a "trademark"? A trademark is a word, name, symbol, color, scent or sound used in trade to distinguish goods or services. A trademark is a legal construct designed to protect consumers from confusion as to the source of the goods or services.
Barry Felder, the lawyer on the panel, said that he has clients call him and complain about a competitor using their trademarks. But then a day later, they tell him to do nothing, since they find out that they are bidding on their competitors keywords as well. Charles Ossola (counsel for Geico) explained that geico spent so much money on its brand, and someone searching on geico and someone searching on geico wants geico.
Danny then asks Charles, based on his definition. What about someone saying that they hate Geico, why can't they put up an ad for that. Charles responds, that the court has not yet decided. He said, this case was against competitors and nothing to do with free speech, comparative ads, or hate ads.
What is a brand? Part art, part science, brand is the difference between a bottle of soda and a bottle of coke, the intangible yet visceral impact of a person's subjective experience with the product - the personal memories and cultural associations that orbit around it. A brand is a promise. By identifying and authenticating a product or service it delivers a pledge of satisfaction and quality. A brand is a collection of perceptions in the mind of consumers.
What does it take to establish a trademark? Use in commerce in connection with goods and/or services.
What does it take to establish a brand? Time, money, sweat equity, consumer experience, consistency of experience, advertising, marketing and PR.
Barry added that it is ok to benefit from someone else's trademark but what is not ok is to cause 'confusion.'
Jeff typed in "faucet" into the Google AdWords Sandbox tool and it came back with moen and other brands of faucets. Now AdWords defaults to broad match, meaning, Google is actually automatically making you bid on moen, etc. He then puts up a slide that shows that branded searches deliver high high success rates (success rates are ctr? conversions?)
Who is bidding on branded search terms? trademark owners, franchisees, retailers, affiliates, agents, competitors, gray marketers, information sites, comparative shopping portals. A Best Buy affiliate manager said that its hard when it comes to managing affiliates, they can be kicked out for abusing TOS and then sign up again under a different alias. But the affiliates do go the extra mile and find new ways to find you targeted, high converting traffic. Personal note: If this was a WebmasterWorld conference, the convo will be going the other way. Not sure how many affiliates are in this room. ;)
Charles said that the Google folks are creative. He said Google made a case that the brand image of having Geico on the page some many times (in the ads) in brand dollars WITH the vast majority of those clicking on the organic first results on geico.com, outweighs the losses of any sales. Danny adds, that he would make the case that since most people see the #1 organic listing and then go to the paid listings, are actually looking for competitors.
Then they moved over to the french case of Louis Vuitton and Le Maridian and Google is losing bad. So US vs. France differ greatly. Danny Sullivan is mocking the French legal minds that they don't understand technology. Google simply can not press a button to make this go away.