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Thursday, December 16, 2004

Google 35, Geico 3

Google's lawyers threw five touchdown passes in a romp over Geico in the newly-renamed Yahoo Bowl (formerly Geico Bowl). Geico reportedly wasn't happy with the officiating. "But we have the hardware," jeered an imaginary Google advertising exec to loud cheering from an imaginary search marketing firm which has been taking Google's side on the keyword and trademark issue from the get-go.

Geico's PR department could manage only a late field goal in the form of a press release claiming that it might still go ahead and take action against advertisers who use Geico's trademark in their ad creative. The press release is rather misleading, indicating that Geico has won a small victory, when most news organizations got it right: Geico lost the case.

To be serious for a second: I've watched this debate evolve from a place where many advertisers and observers assumed the Geico's of the world (trademark holders who don't believe ads should show up that are triggered by trademark keyword triggers in an advertiser's AdWords or Overture account) were right and going to win, to a point where the debate was about 50-50. Thanks to Danny Sullivan, Jeff Rohrs, and a variety of informed panelists, the Search Engine Strategies sessions on this topic really contributed to carrying the debate forward.

I've always been to the extreme side of advocating the position that any keyword should be fair game to use in your account as a means of triggering targeted advertising. But to be very clear, this position is simply the position Google took and that the judge upheld: Google's method of displaying ads near SERP's is in line with legal forms of comparative advertising in the U.S. And never would I want to be misconstrued as suggesting that people should go around abusing others' trademarks. Improper use of trademark in ad copy or on a website is illegal. Attempting to generate consumer confusion by impersonating other companies, etc. is wrong, immoral, illegal, etc.

There will, of course, be more cases. Some will go over similar ground. At this stage, though, if you're an advertiser who receives a legal threat for using pay-per-click ad targeting in a perfectly legal way, your lawyer can fax the decision to "their" lawyers and induce them to agree to drop the matter. You shouldn't have to back down.

The remaining bit of messy business is that Google continues to sporadically block its advertisers from using trademark keywords owned by certain large companies like Amazon and eBay. In other cases, you as an advertiser might have backed down on certain profitable keywords because you received a legal letter and didn't want to go to court. It might be time to retry or revisit previously blocked words.

Posted by Andrew Goodman




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