Trademark suit against Google would have set an ugly precedent in ad business

Perhaps I'm biased because I work for a media company that, like other media companies (print, TV, radio, online... it doesn't matter) relies on advertising to survive.
Written by David Berlind, Inactive

Perhaps I'm biased because I work for a media company that, like other media companies (print, TV, radio, online... it doesn't matter) relies on advertising to survive. I don't pay any attention to the ads on ZDNet. In other words, I don't really know what company's advertisements are appearing near what content nor do I even know the list of companies that are advertising on ZDNet at any given time. What I do know (and any journalist at a for-profit media company that tells you otherwise is not being truthful) is that the ads pay the bills, one of which is my salary. So, when I see lawsuits that could impact the future of advertising freedom, I pay attention. American Blind and Wallpaper Factory's trademark infringement lawsuit of Google was one of those and the precedent it would have set would have been an ugly one -- particularly since the practice in question is just a shade of gray of a commonly-used longstanding tactic in the advertising industry.

According to the Reuters story about how American Blind and Wallpaper Factory dropped its suit against Google:

American Blind & Wallpaper Factory, a reseller of window blinds, had charged that Google abuses trademarks by allowing rivals of the company to buy ads that appear when consumers search the Web for information on that business.

The fundamental question is whether or not American Blind and Wallpaper Factory's competitors should be able to buy the rights to keyword searches on the phrase "American Blind and Wallpaper Factory" in such a way that those rival's own advertisements receive contextually favorable placement in Google's user interface. Clearly, the folks at American Blind and Wallpaper think not.

Although we don't have one as a part of ZDNet's blogging network, many editorial organizations spanning all forms of media have what's called an editorial calendar. Editorial calendars are never 100 percent firm but they're used to give the public relations and advertising communities a general idea of the sort of content to expect in an upcoming issue or segment of a media property. In a monthly car magazine's editorial calendar for example, there might be an entry for the October issue that says "The Chevrolet Corvette at 50 years old." Editorial calendars are often vague about the particulars. For example, is this a a look back on 50 years worth of Corvettes? Or is it a review of the new Corvette that's coming out 50 years after the Corvette first arrived on the scene? Depending on the media property in question, there may be more or fewer such details.

From an advertiser's point of view though, the statistic they are most interested in is the one about the audience that's going to tune into the October issue. Is it a demographic worth targeting with ads? At the very least, the 50 year old Corvette story is going to appeal to Corvette enthusiasts first, and then probably Chevrolet enthusiasts after that (I once had a 1968 Z28 Camaro, so any story about Chevy's muscle cars appealed to me). 50, being a magic number and all, it will probably appeal to any sports car enthusiast as well (OK, at least the enthusiasts of American sports cars).

When thinking about the advertisers that might want to advertise in that issue, Chevrolet definitely comes to mind. After all, it represents a great opportunity to remind Chevrolet enthusiasts that Chevrolet still sells cars that may interest them. But knowing that, Chevrolet's rival Ford might be equally interested in messaging Chevy enthusiasts that it's time to switch their loyalties.

This sort of advertising rivalry is par for the course in almost any industry. Billboards are legendary as "in-the-rival's-face" vehicles for not only targeting certain demographics in hopes of better sales, but also in terms of targeting a rival's employees with some sort of message that's designed to make them feel bad about their employer of choice. Back in the 1990's, before CNET Networks acquired ZDNet (a period during which the two companies were archrivals), CNET would place advertisements on the billboards that were right near ZDNet's offices.

Whereas picking billboards for specific geo-targeting of advertising is something within most advertisers' control, picking pages in a magazine isn't usually as easy. If an advertiser is willing to pay a premium, they can get the back cover, or the inside of the front cover. If, in a technology magazine, there's a regularly recurring column about Microsoft, one of Microsoft's rivals can usually buy advertising on that page, or the one that faces it. But rarely can advertisers exercise the same precision when it comes to editorial that's on the editorial calendar since they may not know the exact nature of the story or its length. Then, along came the Web.

One of the reasons CNET Networks acquired ZDNet was because ZDNet had a sophisticated contextual ad delivery system that could dynamically place ads according to the content on the page. For example, if the content was security-related, the ad delivery system could make sure that the ad appearing on that page was security-related as well. Vendors of security solutions liked this ability to place ads based on relevancy. Theoretically, with contextual ad delivery systems, nothing would prevent HP from making sure that its ads appeared on any Web page that mentioned archrival IBM.

Think what you want of advertisements on Web pages. Even I'm not particularly fond of them. But even so, this ability to contextually deliver ads based on some criteria that's relevant to the advertiser is one of cornerstones of e-commerce that helps to sustain the economy as well as a lot of jobs (including mine). To me, when rivals in one business or another are using Google's contextual advertising functionality in hopes of letting audience members know about an alternative (again, we all have our opinions about the effectiveness of these ads), it's nothing more than a continuation of a longstanding practice in the ad industry. Shortly after CNET's ads came down from those billboards, ZDNet's ads took their place -- effectively blocking CNET from the continued counter-messaging.

OK, so those billboards and the Ford ads opposite the Corvette-related content never once counted on a rival's trademark for their effectiveness. But, for the American court system to ever side with a slighted advertiser on the basis of trademark infringement by way of sensitivity to certain keywords, trademarked or not, would not only be a huge blow to a key element of the online advertising industry (and now, the ad industry on the whole), but also a restraint on freedom of speech. After all, there's nothing libelous about simply placing one's ads near text regarding a competitor and the American Blind & Wallpaper Factory is free to buy those keywords much the same way ZDNet placed its ads on those billboards, effectively interfering with CNET's counter-messaging. That's why I'm glad Google prevailed in this case.

Editorial standards