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Google To Be Sued in UK For Trademark-Linked Ads

Posted by timothy on Sun May 04, 2008 04:01 AM
from the some-people-are-idiots dept.
Government The Courts Businesses Google The Almighty Buck The Internet News
nuke-alwin writes "Channel 4 news in the UK is reporting that Google will be sued by Lastminute.com for the way it sells advertising. Adverts from competitors will now be displayed when searching for some trademarks. Google says consumers will benefit. Some trademarks become so familiar that all similar products are known by the trademark name: Coke and Hoover, for example. I think searching for these kinds of words should allow competitors to advertise their similar products."
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Submission: Google to be sued for the way it sells advertising by nuke-alwin (606789)
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  • Trademarks are to identify the source of goods. Trademarks are not to protect your good from competition. Nor are the copyrights to protect your trademark from use by others outside of identifying the source of goods.

    • Re: (Score:3, Insightful)

      by Anonymous Coward
      I agree
      My first arguement would be

      Is it illegal for a salesman at a department store to a different brand product than you initially were looking for?

      I went to JB Hifi and asked for which iPod (trademarked) is the best. Does it have FM Radio? Are they best value?

      Is it illegal to direct the consumer to an iRiver or Samsung player?

      Is it illegal for a used car salesman to sell you a Toyota when you ask for an inferior Mitsubishi?

    • Re:Abuse of what trademarks are for... (Score:5, Insightful)

      by allcar (1111567) on Sunday May 04 2008, @04:31AM (#23290030)
      You're quite right. Looking further into the article, Tesco (a major supermarket - think WalMart for the UK) is considering action, too.

      In a statement, Tesco also said that it is "disappointed at Google's recent changes to their trademark policy as we think that consumers are the people who will be disadvantaged."
      Now, what kind of screwy logic leads them to think that when searching for Tesco and being presented with ads for a bunch of supermarkets could lead to consumers being disadvantaged? How thick do they think consumers are?
      This has got to be to the consumers advantage. It lets us know what other companies operate in the same domain. OK, for supermarkets, this is pretty obvious, but less so for, say, Tool Hire. If I want to know about tool hire companies, I could type HSS and get a list of relevant companies, simply because I know of one. Poor example, as I could have just searched on "Tool Hire", but you take my point, I hope.
      • I think they mean that consumers would be disadvantaged by being distracted from a great opportunity to give Tesco money.

        The problem is that trademarks have become a form of property, rather than a mechanism to avoid misleading consumers.

      • Re:Abuse of what trademarks are for... (Score:4, Insightful)

        by dwater (72834) on Sunday May 04 2008, @05:04AM (#23290158)
        Devil's advocate here...

        One company spends a fortune building a brand image and is so successful that it is *their* product's name that is the first thing you think of when you think of the generic product, and yet you think it's ok to use produce results for their competitors too?

        I'm not sure I said that too clearly, but I hope you get the idea.

      • Re:Abuse of what trademarks are for... (Score:5, Interesting)

        by TheRaven64 (641858) on Sunday May 04 2008, @06:38AM (#23290502) Homepage Journal
        There are two cases here. One is that you search for a product and get adverts for competitors products. This seems absolutely fine to me. The other is that you get a product and get an advert which appears to be someone selling this product but is, in fact, a competitor (or something completely unrelated). This is absolutely not fine, and is something I have experienced with Google search results several times in the past. Had I been the owner of the trademark, I would have been obliged to sue Google (and probably eBay, who is responsible for many of these) or risk losing the trademark.

        • Re:Abuse of what trademarks are for... (Score:4, Insightful)

          by gaspyy (514539) on Sunday May 04 2008, @07:27AM (#23290632)
          Bingo!

          This is what is often missed and it happened to me. I made a search for "serious magic" (a video f/x software). The first link on Google was paid, and it appeared to from the makers of the said software so I clicked on it. Imagine my confusion when I realized the site I landed on was a competitor's. This is really not OK in my book.

            • Re:Abuse of what trademarks are for... (Score:4, Insightful)

              by smallfries (601545) on Sunday May 04 2008, @08:55AM (#23291120) Homepage
              Did you not read what he said, or did you just fail to understand it? The first link was deceptive - it appeared to go where he wanted but actually ended up on a different site. WTF would sticking to search results achieve here?

              The problem is that Google is allowing deceptive advertising in its results. If they allow one company to pass themselves off as another then they will be sued and they will lose.

        • Re:Abuse of what trademarks are for... (Score:4, Insightful)

          by nguy (1207026) on Sunday May 04 2008, @07:53AM (#23290772)
          Had I been the owner of the trademark, I would have been obliged to sue Google (and probably eBay, who is responsible for many of these) or risk losing the trademark.

          You shouldn't sue Google, you should sue the company misrepresenting themselves.
    • Mod parent up. The right to profit from any use of a trademark other than representing one's own goods is an artificial right hampering competition. Everybody should be able to use others' trademarks for statements such as "similar to $TM", "better than $TM", "works with $TM" and so on, provided the statements are true.
    • Exactly. If you were to continue on Lastminute.com's train of thought, they own how their trademark is used in the wild public, and in information conglomeration (search engines, phone books, dictionaries, etc). As such, Google should blank out any trademarked search outright, unless the trademarkee pays up. So, if you were to search for "Coke", no results should come up unless Coca-Cola bought that search space. If that were the case, I'm thinking they'd stop bitching so much real quick.
    • Yes - trademarks are to identify the source of goods, and anyone misrepresenting their goods as yours may be guilty of passing off [wikipedia.org] at least under UK law. In our very early days we had a competitor of ours place a ads on searches for our company name, with the text shouting about similar services without mention of ours or the competitor's name. We objected to Google, and they took the competitor's ads away.

      Google offer a search service and presented adverts for a competitor when customers searched for our company name. I didn't feel that Google's presentation (i.e. the word "Sponsored links" in small print) made clear enough to potential searchers that the advert was unrelated to our company, and there was a risk of a consumer thinking that this competitor was in fact us. If it had said "These advertisements may be unrelated to the trademark XXX" in clearer text, I'm not sure I would have had the same objection. I think it was a mild attempt at passing off, so I'm glad Google had this policy in place.

      • Re: (Score:3, Informative)

        by TapeCutter (624760) *
        "anyone misrepresenting their goods as yours"

        That is the crux of it, google is not misrepresenting thier service as yours, the company who paid for the ad is doing the misrepresenting. Clause 6 of google's advertising terms and conditions [google.com.au] as it pertains to trademarks is no different to what one would expect to find when taking out an advert in print, TV or radio.

        In your example google acted as I would expect any other responsible adverstising service to act and helped you to police your trademark when

        • Re: (Score:3, Interesting)

          by mattbee (17533)
          Well it's about presentation and money changing hands. I do not think my company "owns" any particular use of Google's database or search traffic that it generates. But if a potential customer is looking for my brand and is being directed by Google at one of my competitors, and money is changing hands for this to happen - well I call that passing off. You might not be misled but I think enough people might be.

          My gripe is with my competitors who are paying for this to happen, not Google in the first instanc

  • they better sue the phone book companies as well. (Score:3, Insightful)

    by timmarhy (659436) on Sunday May 04 2008, @04:09AM (#23289992)
    when i look in the phone book for plumbers, i see all different plumbers.

    boo fucking hoo.

    • Re:they better sue the phone book companies as wel (Score:4, Interesting)

      by rsidd (6328) on Sunday May 04 2008, @05:02AM (#23290152)
      That's not the point. The point is the phone book calls them plumbers; it doesn't list them under a brand name (like whatever the equivalent is for Tesco's in plumbing.) Tesco would have no case if a Google search for "supermarkets" threw up ads for non-Tesco supermarkets. What they object to is a customer searching for "Tesco" and being advertised something else. Whether their objection is valid is a matter of debate but there's no analogy with the phone book.

  • For A Ransom of...$1. (Score:3, Funny)

    by Prius (1170883) on Sunday May 04 2008, @04:19AM (#23290006) Journal
    Oh, Google's being sued. I thought Google was suing the UK. For $100 billion canadian...I've got to stop reading this at five in the morning. Don't ask me how many times it took me to type that sentence. Please.

  • Are the trademarks in question really generic? (Score:4, Insightful)

    by gomiam (587421) on Sunday May 04 2008, @04:22AM (#23290016)
    I fail to see LastMinute as a generic trademark, but Auto Trader sounds quite generic IMHO. It's a case-by-case problem (and the judge will have the last word in the end).

    I've been reading the Wikipedia on genericized trademarks [wikipedia.org] (off-topic: shouldn't it be "generized"?) and it doesn't give too much information about the process of certifying the genericity of a trademark: it seems to happen per se if the trademark owner doesn't take steps to avoid genericization, and sometimes even if steps are taken. Would anybody please point me to a better reference?

    • I don't think that's relevant; it's evidence for the argument, not a direct part of it.

      The argument presented says that such adverts are useful because many people who search for a brand are actually looking for the product, not the brand.

      This is also not relevant to whether they're legal. Given my understanding of trademark law, they are, but of course that carries the usual weight of an IANAL comment on slashdot :)

      • Given my understanding of trademark law, they are, but of course that carries the usual weight of an IANAL comment on slashdot :)

        Furthermore, it's trademark law in the UK, which might possibly be different to that in the US (assuming you're from the US).

        On the other hand, the UK is pretty much in the US's back pocket these days - you know, the one round the back, in the middle. Strangely brown, and worn.

        • As it happens I am from the UK. But UK and US trademark law are very similar AFAIK. (In fact I'm not aware of any major differences anywhere in the world).

          Wikipedia [wikipedia.org] has some detail but to be honest I'm not all that interested :)

  • "Known" is not "marketed" (Score:3, Interesting)

    by Rogerborg (306625) on Sunday May 04 2008, @04:29AM (#23290026) Homepage

    Some trademarks becomes so familiar that all similar products are known by the trademark name: think Coke and Hoover for example

    "Known" in informal usage is one thing. Actually marketed that way is quite another. Would you expect to see Pepsi brand "coke" or Dyson brand "hoovers" being advertised?

    If you allow your trademark to become a generic term, then eventually you may lose the protection it provides. Trademarks are defend-it-or-lose-it. I say may lose because AFAIK this particular principle, of using a trademarked term as a generic term in a commercial search, is a new legal area. So at least we know that a lot of lawyers will make a lot of money out of it. Which is nice.

  • They should deny Google in their robots.txt then they wouldn't be on the same search page as their competition.

    The pages at Google.com are google's property so I fail to see how this lawsuit can go anywhere.

    ~Dan
  • What's really going on here?

    If I put "lastminute.com" into Google, they've got about the top 6 links in the search page. The URL of their competitors is clearly shown elsewhere.

    Are lastminute.com in trouble? Have they got SCO-level management fighting against the reality than anyone can set up what they do (and a lot of their site isn't "last minute" anyway).

    You know what's funny? The most likely impact of this move is that more people will link to this slashdot article and drive this up the main inde

  • Again? (Score:3, Insightful)

    by pembo13 (770295) on Sunday May 04 2008, @04:45AM (#23290086) Homepage
    Google is still an optional service. If you don't like how they deal with you, don't use them.

    • Re: (Score:3, Insightful)

      by arkhan_jg (618674)
      You misunderstand. Search for say, 'lastminute.com travel' on uk google and you will get paid sponsor links for competitors to lastminute.com. Assuming google allowed those competiting businesses to add lastminute.com as a keyword for *their* link to show up for, then google is selling competitors the ability to get search results off a trademark that doesn't belong to them.

      Imagine if a supermarket put up a big advertising board at the front of the store with pepsi branding and trademarks, but underneath it
  • How is this example any different: I walk into the store looking for a Pepsi. I ask the clerk, "where is it?", she says, "It's over there next to the big Coke sign.

    Think about that for a second.

    Now, lets take it step further. Lets say I make a searchable yellow pages. It quite literally searches scans of the yellow pages and pulls up the pages that might have what you are looking for. You're going to see ads for competitors when you use trademarked words.

    Of course though, this is in the UK, whose adver
  • You know the general mantra of people who support advertisements (for whatever interest they have)? They say advertisements increase competition and are, therefore, ultimately beneficial to the consumers. Well, I think Google's way is a great implementation of this principle.

    Google: keep it up, I'm rooting for you.

    lastminute.com and Auto Trader: FY.
  • Anyone creating an adwords campaign would be required to click a checkbox "This keyword is a trademark of another company". The ads would then have a small label saying they are from a competitor. No one would be able to claim that customers are being deceived in any way.

    • Re: (Score:2, Funny)

      by Anonymous Coward
      That caught me off guard, too. I didn't know that building dams is such a competitive business.

    • Re:Coke and Hoover? (Score:4, Insightful)

      by MobileTatsu-NJG (946591) on Sunday May 04 2008, @04:48AM (#23290096)
      "Coke.. okay, maybe. Hoover? I never hear anyone say, "go get the Hoover."

      I've heard the term 'hoovering' used to describe vacuuming. I think over in Englad it was more widely used that way. (That is if TV has actually taught me something.)

      • Re: (Score:3, Informative)

        by davebert (98040)
        Yep, it's pretty standard usage in England - I hoover with my Dyson!

      • I've heard the term 'hoovering' used to describe vacuuming. I think over in Englad it was more widely used that way. (That is if TV has actually taught me something.)
        So have I. I think in Australia though, the most prevalent one though is 'iPod' for absolutely any MP3 player. Hell, even "Googling" meaning any type of search as well. Google should sue Google!

    • Re:Coke and Hoover? (Score:5, Informative)

      by YttriumOxide (837412) on Sunday May 04 2008, @05:00AM (#23290148) Journal

      I think "hoover" tends to be quite common in some areas of the UK, but primarily amongst the older generation now.

      You're quite right about "Xerox" and "Kleenex" though. I'd throw in to the list "Band Aid", "Post It" and "Biro".

      It all depends on where you live though - different countries, and even different locations within countries are more or less likely to use these. For example, in Japan there's "almost" a verb for copying ("xeroxing") based on the name Ricoh (roughly "Ricohpying"). Or in some less developed countries, the world "Nescafe" is a synonym for "coffee".

      • Re:Coke and Hoover? (Score:4, Interesting)

        by temcat (873475) on Sunday May 04 2008, @05:09AM (#23290180)
        In Russian, "kseroks" is vastly more popular as a general term than "kopir." There is a verb "kserit'" which means "to copy on a copier" :-) There is even an adjective "kserokopirovalny" meaning "related to copying on a copier."

    • Re: (Score:3, Informative)

      by dwater (72834)
      Try the English2American dictionary - 'h' section :

      http://english2american.com/dictionary/h.html [english2american.com]

    • Hoover? I never hear anyone say, "go get the Hoover."
      *Nothing* sucks like a VAX!

      http://dictionary.reference.com/browse/VAX [reference.com]
    • The anon parent is absolutely right. LastMinute, Tesco et al probably have a duty to their shareholders to stop any sort of misuse of their trademark.

      It's not all that easy to lose a trademark -- Google is still in place, as is Xerox -- but the risk is there and it has happened, cf. the other examples above. In this case, if Google treats a search for "Tesco" as a search for "supermarket", and Tesco doesn't protest, Tesco is probably implicitly agreeing that their name is a generic name for a supermarket:
    • Except Google does nothing of the kind. It does not use or facilitate use of trademarks as generic terms. It just brings up additional trademarks when you search for one.
    • There's a difference between illegal and evil, you know.

        • Re: (Score:3, Insightful)

          by temcat (873475)
          No. If Google is found to be violating any laws, then it will have to correct the violation. But if the said laws themselves are evil, then by correcting the violation, Google commits an evil act, even if it does so under compulsion.

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