Class action lawsuit says Google's sales of keywords illegal

Class action lawsuit says Google's sales of keywords illegal

Summary: Google encourages advertisers to purchase other companies' trademarks as targeted search terms. And they're expanding the practice into 190 countries.

TOPICS: Google

Google encourages advertisers to purchase other companies' trademarks as targeted search terms. And they're expanding the practice into 190 countries. Is that fair use or a protection racket?

Audrey Spangenberg, CEO of FPX, a SaaS company that owns the FirePond trademark, thinks Google's use of her trademark as an term for sale by Google is an outrage, since anyone searching on the word will the sponsored links of her competitors at the top of Google results page, The New York Times reports. (Actually when I searched on "firepond," I didn't see any sponsored links.)

She's suing not just for the infringement of her own trademark but as lead plaintiff in a class action against Google on behalf of all Texas trademark holders. Since trademark infringement is a fact-specific inquiry into whether the alleged infringement causes confusion, it's unlikely the federal court will certify the class, The Times' legal experts said.

For its part, Google says the plan is legitimate, even if trademark holders don't like it. But even if it's not a trademark infringement, "it certainly smells of a protection racket," said attorney Terrence Ross, who represented American Airlines in its own trademark infrngement claim against Google. That case was settled.

I know of several companies spending millions of dollars a year in payments to Google to make sure that their company is the very first sponsored link.

Bryan Wiener agreeds: “There is no question that it is going to increase Google’s revenue,” Mr. Wiener said. He said that companies that offer products or services, like computer makers or hotel chains, may not like the new policy because it will force them to place higher bids to advertise on searches for their own brand names.

This is a problem purely because of Google's market dominance. You have to be obsessed with your ranking on Google and you have to be on top. If Google is selling the use of a company's trademark to its competors and there is no other game in town, you really have no choice but pay Google's price. That's the beauty of a monopolistic position: You name the price, they have to pay.

Topic: Google

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  • proof reader anyone?

    Richard , what does the following mean?

    "since anyone searching on the word will the sponsored links of her competitors at the top of Google results page, The New York Times reports."

    Any chance of me working as your proof reader?
    • proof reading?

      That's pretty standard stuff in these articles for some reason and this one is particularly bad. Even the most basic grammar checker would never have allowed that to pass.
      I have a feeling the articles must go through language translators by the look of the errors most of the time and that there is little to no vetting done before they hit the ether. Anything but professional, at any rate.
      Makes them look pretty, well, silly, doesn't it? Would YOU buy a used car from that article's author? Kind of ruins credibility, doesn't it? What else is mis-stated/mistranslated/whatever?

  • Seems wrong to me...

    Wikipedia, that oracle of truth, describes trademark infringement as:

    "Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence legal proceedings against a party which infringes its registration."

    It would seem to me that both Google and the ad placer are both infringing trademarks, if they don't have the express authorisation of the trademark holder.

    It does seem unacceptably wrong that Google is effectively making people bid for something they already have exclusive rights too. Its doesnt seem like "do no evil" to me.

    • Unacceptable

      I have to agree with you on this one, even forgetting
      all of the "trademark" BS stuff. This Google
      business model is sounding an awful lot like
      blackmail. So long as they were selling "best value"
      and proving it to their advertising customers through
      algothrims or whatever, that they are in fact
      receiving best value, then they can charge highest
      price, or a price somewhere relative to the value.
      There is no value (to the customer) with this model, if
      I understand it correctly it is very much resembling
  • RE: Class action lawsuit says Google's sales of keywords illegal

    Google is not a trademark office and it does not have the task of checking if a word is a registred trademark somewhere in the world.

    If a company is scared that someone is using their trademark-keyword, it's up to this company inform Google that certain words in certain countries may not be used.

    Google gives to the legitimate owner of trademarks a procedure (is quite complicated) to stop sponsored ads on registrered keywords.

    Giovanni Sonego
    • google employee

      spoken like a true google employee, trying to justify google's actions
      • maybe, but it is true

        I had a competitor that bought my registered trademark as an ad word. I complained to Google. I had to fill in a bunch of forms, provide the registration numbers, etc. I also had to list all the sites that were legitimate users of that keyword, companies that resell my products.
    • Posted by: gsonego ??

      Sorry; that's exactly how the name posted. Maybe it's meaningful to the problem under discusson; dunno.

      But, perhaps you should go back and re-read the aritcle - and see if you still want to say that. Google KNOWS they are registered trademarks; and wants to deal in them and charge a ransom to keep them from being infringed. Pretty smelly stuff IMO. Legal or not, it's unethical and unscrupolous. No good company would pull that kind of stunt. Course, this isn't new for Google either; just bau, aka MS's methodologies.
      I think I'll start buying Google's trademarks; hmm, that's not a bad idea. I'll use the same methods they use to sell them back so they can keep them from being diluted. Hmmmm ... .... ... .
  • It probably doesn't infringe

    But it is a stupid tactic on Google's behalf. It will engender ill will
    among both business an consumers, opening an opportunity for
    other search engines.
    Fred Fredrickson
  • RE: Class action lawsuit says Google's sales of keywords illegal

    Google will compromise and offer companies to validate their ownerships to certain search terms (with limitation of course). Direct searches for a company/product/service name would be offered to that company. The courts would decide if there is a fee or not. If there is, how much? Why?

    If a company doesn't act on that (if offered) then it is first come first servce just as it is now.
  • Time for the DOJ to start looking into Google?

    It really [i]does[/i] come across as extortion, even though techniclly it is not.
    • Don't worry, the EU will need more cash soon...

      Hallowed are the Ori
  • They better watch out for angry undertakers

    Take enough business away from someone in an underhandly way and they may come back with a better way for searching for a service. The Strowger Switch Mark II might be the end of google. HAHA I hope someone understands me..
    • RE: They better watch out for angry undertakers

      The irony was [b]NOT[/b] lost on me, as I am aware of the circumstances that caused the development of the original switch.

      For the curious:
  • Google steals, period nt

  • Of course

    Of course.. if you see a ad made for Marsh showing how it sells Coca-Cola at a cheaper price, but if Google AdWord ads do it too - hell no. Thats copyright infringement. Discount cola, thank you very much.
    • Actually, that's fine

      You can use a trademark if there's no reasonable way to get your messge across without it. "Buy COKE for 20 cents a sixpack!" is not tm infringement. It's a fair use of a trademark.

      If, I dont know, COPA-COLA uses a logo that looks like Coke's famous red and white logo, that would be.
  • Message has been deleted

    Message has been deleted
    Hallowed are the Ori
  • this is a M$ diversion

    With M$ trying desperately to stop google, they pay third parties to file frivolous suits against google.
    Google is using OSS so they should be in the clear.
    Linux Geek
    • spam?

      These constant off-topic missives about m$ are perilously close to spam, LinuxGeek.