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Sunday, October 19, 2003

French Trademark Ruling Could Have Far-Reaching Effects

Longtime Google AdWords advertisers know this is nothing new: Google allows advertisers to advertise on "competitor words" on a "wait and see" basis. Most of the time, these words slip through. Google typically disables them when a larger trademark holder complains.

As I've been arguing for over a year now, this is a gray area in the law. (A more extensive discussion is contained in my report on Google AdWords.)

The upshot is that Google probably wishes that the courts would understand that both web search and advertising that appears near search results (and now content) can be designed so that its primary sorting mechanism is not keywords, but rather a "universe of meaning." Presumably, trademark holders can't own a universe of meaning, of which a certain phrase may be merely a subset. Indeed, an ad appearing in the right-hand margin of Google Search when one types a certain phrase doesn't prove that the advertiser has that phrase in their account -- it may simply mean that the advertiser has a RELATED word or phrase in their account. And since advertisers' accounts should be a private matter, who's to know exactly how or why an ad happened to pop up near a phrase which happens to be in a certain universe of meaning that appealed to an advertiser?

Thus a case can be made that the trademark holder's rights simply should not override Google's rights nor the advertiser's rights. Is this (a results page on Google Search) Google's property, or the trademark holder's? Advertisers are generally making no claim that they *are* the trademark holder, they're just assuming that their message might be of interest to a user typing a query within a given universe of meaning. Isn't that so? I tend to think so.

Now does it become clear why Google has rushed so quickly to include "expanded matching" in its offering, which shows ads not only on keywords advertisers specify, but on related keywords based on a matching score generated by their semantic matching technology (a technology which is constantly being developed)?

Google is appealing the French court decision and won't comment on the case at this time. If one goes on recent history, French courts may not be trusted to rule in Google's favor no matter how compelling a case they might make. But it's a vitally important issue and when it inevitably arises in the US, Google will no doubt be gearing up for a more serious legal battle to protect the integrity of their turf, their technology, and the free speech rights of Google's scientists and AdWords advertisers.

Posted by Andrew Goodman




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