I have no doubt that the legal arena in the SEM field will begin to grow rapidly over 2004. That is why I have selected to attend the Leggo My Trademark: A Search Engine Legal Update session. Jeffrey K. Rohrs, Director of Account Management, Optiem moderated this forum. Jeffrey was a lawyer but now is in SEM.
What is a trademark? A word or symbol or slogan used in trade to distinguish goods or services. It should always be a noun and not a verb. With a trademark, there should be little source confusion. ® is a registered trademark, TM or SM is an unregistered trademark. Trademarks are not global, only federal or state protection.
Trademarks in search can be found anywhere you would put it in your on page seo elements.
"Trademark infringement is use of another's mark that is likely to cause consumer confusion, or to cause mistake, or to deceive as to source, affiliation, sponsorship, origin or approval." Trademark litigation can run in the ballpark of 1 million dollars. Generic terms are not up for trademark. Example, Apple (big apple, apple macintosh, apple pie). International law is similar, but the consequences differ.
Example: Google versus Booble. This case is going to court.
They took us through a case, American Blind. When doing a search on American Blind you will see the results. Notice the organic and paid results at top and right of page. This sprung a law suite "American Blind versus Google". American Blind sells blinds, they spent over 50 Million dollars to build their brand name. Initially Google said they would not sell American Blind 5 trademarked names on AdWords. Google refused to the bidding on "American Blind(s)", etc. saying its a generic term. AmericanBlind believes there is consumer confusion and is taking Google to court. They will probably sue the people who purchased the keywords later. Overture is not selling those keywords, so they are not being sold.
Danny put on an Ad for American Blind Lawsuit, no problem with that because he does not sell blinds. BUT, when he tried to put "Google" in the ad copy and it would not allow him because of trademark issues. So he published it with Gogle, instead. The ad went up right away and no human review.
FYI - there is someone on the board representing the International Legal community who gave examples of the same things happening in France and Germany.
The moderator then gave an example of the Google Sandbox where he put the word "faucet" and the results were shocking. The suggested terms included, Delta Moen Kohler Faucets, all of those are trademarked names. Keep in mind there is zero human interaction here, and Overture's suggestion tool does the same. He then did a search on Danny Sullivan and people are paying for his names in AdWords.
What should an SEM company do to avoid this? - Avoid using Broad Match blindly (use negative terms, exact match and other options) - Overture has a Trademark Fair Use Exceptions policy
First example is a search on "Yahoo Store" an Ad should come up that says "Alternative to Yahoo! Stores. Which takes you to a comparison page of the alternatives to Yahoo store. The argument is that since it clearly states that this is an alternative. Legally it is allowed but business ethically it is not nice to allow someone else to use someone else's brand and picky-bag off of it.
Very informative session, glad I attended.