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Google To Be Sued in UK For Trademark-Linked Ads 235

Posted by timothy from the some-people-are-idiots dept.
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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Google To Be Sued in UK For Trademark-Linked Ads More

Google To Be Sued in UK For Trademark-Linked Ads

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

    by raehl ( 609729 ) <(moc.oohay) (ta) (113lhear)> on Sunday May 04, 2008 @05:09AM (#23289990) Homepage
    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 @05:31AM (#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.

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

        by the_womble ( 580291 ) on Sunday May 04, 2008 @05:56AM (#23290124) Homepage Journal
        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 @06:04AM (#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.
        • Comment removed based on user account deletion

        • Re: (Score:2, Interesting)

          by Threni ( 635302 )
          > 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?

          It's ok. I want a vacuum cleaner. I google for Hoover, and see other sorts of vacuum cleaner. Because, although Hoover is a type of vacuum cleaner, there are others. Having a trademark doesn't mean other, unconnected companies - especially t

          • Re: (Score:2)

            by dwater ( 72834 )
            Hoover is a bad example, because the word has come to mean 'vacuum cleaner'.

            • Re: (Score:2)

              by Megane ( 129182 )

              Hoover is a bad example, because the word has come to mean 'vacuum cleaner'.

              In the UK, yes. But it didn't get verbed in the US, so we don't say "Hooverin' the carpet". Here, it's just a brand of vacuum cleaner. (And in Japan, the brand name "Hotchkiss" became the word for "stapler".)

              Now does anyone know where I can get a new Refrigerator(R) brand, uh... food cooler cabinet?

              • Re: (Score:2)

                by dwater ( 72834 )
                right, and we're talking about the UK not the US in this case, so you're agreeing with me? ...or did I miss something?

            • Re: (Score:2)

              by jbengt ( 874751 )
              I never hear "Hoover" used as a generic term for vacuum cleaner (I'm in in northern Illinois, USA).

        • Re: (Score:3, Interesting)

          by funkatron ( 912521 )
          Of course it's ok. Google can produce whatever results they want. Just because a company has spent a lot of money doesn't mean they're owed anything.

          • Re: (Score:2)

            by jgoemat ( 565882 )
            They're not talking about search results though, they're talking about paid advertising before the search results. I think they should be going after the companies buying the search terms that are trademarked though and not google. Going to google is the most efficient way however...

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

        by TheRaven64 ( 641858 ) on Sunday May 04, 2008 @07:38AM (#23290502) 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 @08:27AM (#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 nguy ( 1207026 ) on Sunday May 04, 2008 @08:53AM (#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.

      • Re: (Score:2)

        by Machtyn ( 759119 )
        I have often been on the search for some product *similar* to Brand X and have desired to find out information about its competition. Perhaps the competition had a feature that Brand X doesn't include, or does include but for a premium price (printers with built-in network comes to mind... think HP but wanted a Brother MFC-xxxxCN).
    • Comment removed based on user account deletion

      • Re: (Score:2)

        by jbengt ( 874751 )

        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.

        IANAL, but as far as I know (at least here in the USA you can use such statements in advertisements, as long as you include the or ® mark.
        However, advertisers don't like to do that usually, because, in the spirit of "any publicity is good publicity", they try to avoid mentioning their competition by name.

    • Re: (Score:2)

      by gerf ( 532474 )
      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.

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

      by mattbee ( 17533 ) <matthew@bytemark.co.uk> on Sunday May 04, 2008 @06:51AM (#23290322) Homepage
      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:2)

        by gaspyy ( 514539 )
        I happened to me - do a search on Google for "serious magic" (I knew it's a chroma-keying software, but not much else).

        First result (paid) on Google, is

        Serious Magic
        fxhome.com/compositelab Special Effects On Your Desktop Simple Powerful Software. Try Now!

        However, when I clicked on the link, I realized the site had nothing to do with the software I was looking for.

        If I were the maker of Serious Magic (they've been bought by Adobe) I would have been pissed off too. I don't have anything against FXHome, b

        • Re: (Score:2)

          by nguy ( 1207026 )
          Come on, that's just not the same. That ad uses a trademarked name to misrepresent what people are getting when they click on the link. The UK dispute involves ads that don't use the trademarked name.

          That ad should be OK in response to a search for "serious magic" if it said:

          Special Effects Software
          fxhome.com/compositelab Special Effects On Your Desktop Simple Powerful Software. Try Now!

          or even

          Better than Serious Magic!
          fxhome.com/compositelab Special Effects On Your Desktop Simple Powerful Software. Try N

      • Re: (Score:2)

        by nguy ( 1207026 )
        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.

        I don't see the problem. Trademark law merely doesn't allow people to misrepresent the origins of goods and services. If people go to the web site and it's clear that it's not your company, how have your goods or services been misrepresented?

        You seem to be operating under the false assumption that you own all the tra

        • Re: (Score:2)

          by pbhj ( 607776 )

          Trademark law merely doesn't allow people to misrepresent the origins of goods and services. If people go to the web site and it's clear that it's not your company, how have your goods or services been misrepresented?

          You seem to be operating under the false assumption that you own all the traffic that your trademark generates. You do not. If I put up a "[your trademark] sucks" web site, you don't own that traffic and you don't have a right to prevent people from finding that site.

          There are a couple of points there:

          1) Trademark law includes specific provisions to protect the reporting of and criticism of trademarked goods or the companies they represent. That's why your alicious-sucks.com website is OK.

          2) Consider the search engine like a shop-front. It advertises the business to people, maybe shows some products, is used to get people in the door (ie to visit your site in the search engine case). Putting a competitors trademark name on your shopfront misrepresents your business. Si

        • 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

      • 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

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

    by timmarhy ( 659436 ) on Sunday May 04, 2008 @05:09AM (#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 @06:02AM (#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.

      • Re: (Score:2)

        by pbhj ( 607776 )
        The phonebook analogy could work:

        You look up "Tesco" in business pages. Alongside is an ad for "Sainsburys". No harm there in my book. But then that's partially because we know that Sainsburys is different.

        How about if the company was called "PeterMark" (ahem, measuring services). Next to it an ad says "looking for measuring services try ... JohnThomas on 0022-555-8974").

        Is that OK. I think so, the "PeterMark" trademark owner* would probably be a bit pissed however.

        ---
        * I've assumed the name is distinctive

      • Re: (Score:3, Interesting)

        by krunk7 ( 748055 )

        Well, it's kind of hard to organize like this with the printed page. Too many combinations of "searches" for specific trade marked names. However, with dynamically generated content backed by a database it's a breeze.

        I bet if the yellowpages had an online site, they'd do the exact same thing.....oh wait, they do: http://www.yellowpages.com/nationwide/name_search/wal-mart?search_mode=all&search_terms=wal+mart [yellowpages.com]
        Look at the right side of the page, a long list of "Related Businesses".

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

    by Prius ( 1170883 ) on Sunday May 04, 2008 @05:19AM (#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 @05:22AM (#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?

    • Re: (Score:2)

      by 26199 ( 577806 ) *

      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 :)

      • Re: (Score:2)

        by dwater ( 72834 )

        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.

        • Re: (Score:2)

          by 26199 ( 577806 ) *

          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 :)

    • Off-topic: No, it should be "genericised" because you are making it more generic. Generized (other than being a silly American spelling with a zed) would mean you are making it more gener, whatever that is.

      On-topic: The only way I can see that they're complaining is if you search for lastminute holidays [google.com] or even just lastminute [google.com]. You then get various holiday agents in the adverts because they are selling adverts for holidays that are available at the last minute.

      While it's potentially piggy-backing their trad

    • Re: (Score:2)

      by pjt33 ( 739471 )
      Auto Trader isn't at all generic because here we call them cars.

    • Re: (Score:2)

      by lysse ( 516445 )

      I fail to see LastMinute as a generic trademark, but Auto Trader sounds quite generic IMHO.
      Maybe to American ears, but in the UK we usually refer to automobiles are "cars", rather than "autos", which makes Auto Trader quite distinctive here.

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

    by Rogerborg ( 306625 ) on Sunday May 04, 2008 @05:29AM (#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

  • Oh please... (Score:2, Interesting)

    by 16K Ram Pack ( 690082 )
    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 @05:45AM (#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
      • I don't think that anyone misunderstood the article although your analogy is flawed at best. In the situation where a company uses another trademark to dishonestly market their goods they have broken the law. The dishonestly market part is important - this is what trademark protection is setup to avoid.

        When I google for lastminute.com people have placed bids on that keyword to present relevant information. Note, this is their definition of relevant, not mine as the consumer but we'll ignore that. They have
  • 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.
  • The "Similar pages" link already shows you the competitors and has done so for about 10 years now. Why hasn't anyone sued google for that?

  • If they win against Google, I wonder how much farther they will go?

    For example, if I go to Amazon and search for some specific, branded, product, Amazon includes on that product's page a list of products that people shopping for that product bought. These are often competing products. Will the trademark owners object to this?

  • If Google responds with "We're sorry your are unhappy with our list of your company, we will of course remove all references/links to your company from our listings. And BTW, for now on the results listing your competitors were not matched by using your trademark, but rather by data about what links people clicked on in the past after searching for a specific string."

    Personally, I do think it is wrong to bombard someone searching for a JohnWidget with SallyImitation Ads. Phrased another way, "If you don't
  • ...I don't pay attention to ads anyway. Excuse me, I'm getting a tense, nervous headache.

    [drinks Coke from a classic bottle, holding the label to the camera] *contented sigh* [pops an Anadin] *instant pain relief face*

    Better. Oh. Time to take the kids shopping. L8r.

    [grabs basketball, pulls on the Nike's making sure not to obscure the cameras' view of the swoosh]...

  • But I agree in part. If you search for the term 'Coke' and 'Pepsi' comes in second in the advertiser list, what does that mean? It means Pepsi is benefiting from the Coke trademark. They are in essence advertising their product using the trademark. Maybe google isn't the one to go after though, maybe it would be Pepsi for paying to advertise their product using the Coke brand name. I see no problem if Google returns Pepsi.com anywhere in the search results (even on top).

    Think about it this way. Wo

  • The intent behind trademarks is consumer protection, not to give companies monopoly rights on a name. The only responsibility you have when using a trademark is that you don't misrepresent the origin of goods.

    So, advertisting your product in response to a search for a competitor's trademark is in the public interest and falls within the intent of trademark law, as long as you don't misrepresent yourself as the trademark holder.
  • My understanding about trademarks comes from u.S. law. Is there something about U.K. law that's different?

    There _may_ be some dillution aspect to this, however, if Google doesn't mix and match brand names in search results, I really don't see a problem here.

    The best analogy I can think of is in a store.

    If I asked a shop keeper, do you carry brand X, and he responded, "No, but we do carry brand Y," that's is clearly not infringement.

    If the shop keeper says, "Yes we do have brand X over here, but have you c
  • Google can probably avoid a lot of this controversy by actually just identifying the results:

    [official site] Tesco Supermarkets

    [other site] Cheaper than Tesco!

    This could work based on domain names, data mining, and/or a /trademarks.txt file on the servers.

    Google could also allow personalization, letting people choose whether to see the official/competitor's sites and in what order, as well as letting users block lists of trademarks they never want to see (e.g., Coca Cola, Nike, Microsoft, whatever).

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