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All Just just about ClaimsCommercial or Informational? - Your Choice
by:
Mikki Barry
An issue has been production
just about since the origination
of Google AdWords, regarding who "owns" what rights to which words. Trademark holders and business owners alike have been job "foul" once
a competition uses their name, product name, or proprietary
expression in order to cause their advertisements to appear either in the Google search results (by use of meta tags or otherwise victimisation the keywords in their website itself), or by buying those words via Google's AdWords which would-be then cause their ads to appear in the sponsored sections of the search pages.
In this particular case, Office Depot has sued Staples, claiming that Staples joined
to words that are Office Depot trademarks, effort Staples ads to move up on searches for "Viking," which is a subsidiary of Office Depot. Office Depot claims trademark infringement, false advertising, unfair competition, and deceptive trade practices.
So what's going on here? Makes a trademark mean that you then "own" that word or that phrase, and common person else can use it ever? Can the "trademark police" finish you from victimisation the words "Office Depot" unless you're talking just about them specifically, including disallowing anyone from locution they are a store "like Office Depot?"
Trademark Infringement
Let's take a look at the claims that Office Depot are production
against Staples. 1st in line is trademark infringement. Trademark law is etched out of our general ability to use words in any way we choose (in the US anyway) in order to protect consumers against inferior products, by instructive
the source of a product or service so that you can be certain that an "Office Depot Product" was really ready-made by Office Depot and not by causal agency else. It is comparatively
clean in this case that a user
would-be not be confused in the least by clicking on an advertisement for a shop that makes not claim to be Office Depot, or have Office Depot in their domain name. If I were the judge, I'd throw that one out on its nose.
False Advertising
How just about false advertising? Well, since Staples isn't claiming to be thing
but Staples, how could they be advertising falsely? The advertisement they have created is supposedly
true. The only difference is that the mechanism by which the ads are shown. Is this false advertising? Not in my opinion anyway. It could, in fact, be argued that use of competitor's words in search engines are pro-consumer in that it provides the user
with far more choices then they would-be otherwise find.
Unfair Competition
Unfair competition? Now that one is a possibility. Unfair competition laws are set to protect companies against else companies, rather than protect the user
against companies, as trademark law and false advertising are set up to do. Unfair competition actions grew out of trademark infringement law to prevent one merchandiser from entertaining patronage from a rival by incorrectly
representing that his goods were the goods of his rival. But wait a minute here; Staples wasn't passing off their goods by locution they were really Office Depot's goods. Again, there was no probability
of confusion or construe as to the source of the product. So that one doesn't activity terribly well either.
Deceptive Trade Practices
That leaves us with deceptive trade practices. So what ARE deceptive trade practices? The Federal Trade Commission defines prohibited activities in the Uniform Deceptive Trade Practices Act as:
1) Passing off goods or services as those of another. Well, that looks a lot like unfair competition and trademark infringement.
2) Causes probability
of confusion or misunderstanding as to the source or approval of goods or services; or an affiliation with or certification by causal agency else. Makes a listing on a search engine imply an approval, affiliation or certification? Not to any user
who has used a search engine for more than 15 minutes :-). Doesn't seem like this one fits either.
3) Uses deceptive representations or designations of the geographic source of the goods or service. Nope, don't see any of that here.
4) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses or benefits that they don't have, or that a person has several sponsorship, approval or connections that he or she makes not. Office Depot hasn't claimed thing
just about the goods themselves, just that they are being publicized by buying words from AdWords that correspond to Office Depot protected words. So that doesn't activity either.
5) Represents that the goods are innovational or new once
they are not. See #4.
6) Represents that goods or services are of a particular standard, quality or grade, or of a particular style or model, once
they are not. See #5
7) Disparages the goods, services or business of causal agency else by false or dishonourable
representations. If you believe that just displaying causal agency else's goods criticize yours, mayhap this one will fly, but likely not.
So what is the real point here?
So if such a passing view by another professional person
shows the large holes in the claims of this lawsuit, why file it? What is the point?
It is extremely
possible that Office Depot has filed this suit in order to bring attention to the practice of competitors ensuring that their advertisements are shown on
with their competitors' in hopes that Congress takes up the issue and passes new laws or modifies current laws to compel the practice. However, prohibiting the use of competitor's words, products or phrases in meta tags or programs like AdWords would-be likely create more much difficulty than it solves. As a consumer, one uses a search engine in order to find the better product, the better price, or information on that or similar products to fulfill your current needs. It is in the better interest of the user
to provide as more information as possible so that the user
would-be be able to do the better select for that particular consumer's circumstances.
The question comes down to a familiar one - should the Net
be primarily an outlet for information, or for commercialization? If you choose information, then anyone should be able to use whatsoever
meta tags, adwords, keywords, or text that they desire, so long as they are not in violation of laws that protect consumers from poor quality, or confusion as to the source of a product or service. This would-be leave the constitutional right to "bash" particular products, use parody, satire, or just mention products on your website and then sell AdWords to further promote your journal
or whatsoever
else you will to promote. On the else hand, if you choose commercialization, use of trademarks in meta tags, on your website, or in AdWords would-be be prohibited, necessarily limiting the figure of easily available information on ANY subject, not just regarding products or e-commerce interests.
Just just about the author:
Mikki Barry has been a trademark and intellectual property professional person
for technology and small business companies since 1991. For more information see www.mikkibarry.comThis article is not meant to be legal advice.
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