December 5, 2003

Aiming to pre-empt mounting complaints of trademark violations, search company Google has asked a court to rule on whether its keyword-advertising policy is legal.

The company filed a complaint in the US District Court in San Jose, California, on 24 November. It centres on a dispute with American Blind & Wallpaper Factory, an interior decor specialist, over the sale of keyword-advertising within search results that appear on Google and across the web. American Blind has insisted that Google stop selling keyword phrases that the company claims violate its trademarks.

While Google had said it could block advertisers from buying keywords that directly infringe on its trademarks, including "American Blind Factory" and "DecorateToday," the company said it could not block other descriptive phrases that American Blind wished to protect. Those phrases included "American wallpaper" and "American blind," according to the filing. As a result, American Blind had threatened to sue Google if the matter couldn't be resolved.

Google is seeking guidance from the courts before that happens. "An actual, present and justiciable controversy has arisen between Google and American Blind concerning Google's right to sell keyword-triggered advertising to its customers," according to the filing. "Google seeks declaratory judgment from this court that its current policy regarding the sale of keyword-triggered advertising does not constitute trademark infringement."

Google's request highlights a murky area of trademark law related to search engine marketing that's become a growing area of concern among advertisers. Search-related advertising has become a key moneymaker for Google and others because it's effective for marketers. They can reach web surfers while they're searching and pay only when people click on their links. The system works so well that some marketers bid for keywords related to rival brands to prey on their traffic.

Because more companies are taking notice of the importance of search marketing, more complaints are flying.

Earlier this year, auction giant eBay asked Google to block advertisers from using its trademark in sponsored search results. eBay listed, in 13 pages, a wide selection of terms related to its trademarks. Google complied with some of its requests. In August, Louis Vuitton sued Google and its French subsidiary for similar alleged trademark infringement, and a French court in October ordered Google to cease the practice and pay a fine.

Still, the law is unclear in the United States about the responsibility of search engines to police trademarks in paid search. Google says in its terms and conditions that advertisers themselves "are responsible for the keywords and ad text that they choose to use."

But if asked, Google will perform a limited investigation and respect "reasonable" requests to remove trademark terms from the bidding process.

Questions also remain about a search providers' responsibility to give trademark holders visibility in search results based on keywords related to their trademarked terms, regardless of payment. Last year, Mark Nutritionals filed lawsuits against Yahoo!-owned Overture, AltaVista, FindWhat and Kanoodle for alleged trademark infringement and unfair competition, suits that could help define laws in this area.

Mark charges that the search companies used keywords related to its trademarked name Body Solutions but buried Mark's own links. The company is seeking $440m in damages.

Story by Stefanie Olsen
Source: CNET News.com

        

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