The Great Google Trademark Quandary of 2012

The entire issue around trademarked search terms is back in the news again. Rosetta Stone, the proprietors of the language software that you can buy at the mall – and apparently online, has been granted “go-forward” status on their trademark lawsuit against Google. The meat of the suit is the age old (at least Internet age old) question regarding use of trademarks as search terms or search triggers. That is to say, can anyone display their ad on any search term, even if it’s a protected trademark being searched?
The history on this is pretty heavily layered – from nearly day one, people have complained about the Goog’s laissez-faire approach to trademark terms. The ability to use them as advertising triggers is both vexing and tantalizing to search marketers. There is a subtle schizophrenia around the issue – everyone wants to use their competitors, but everyone also aggressively defends their own and would like to cut off their use by competitors. And by cut, I mean slice.
Years ago – and Google’s rules are essentially unchanged – we advised clients to not bid on their competitors terms if their terms weren’t being bid on. I, and the other marketers that espoused the same advice, thought that this particular détente provided a gentleman’s agreement of sorts on brand terms – arguably the best value in the search space. As these agreements were broken one by one, competitor terms rapidly became the first place to capture traffic. Great brand traffic is great brand traffic – these are customers who are ready to buy and have selected their provider – all you or your competitor has to do is snipe them. However, the down side is that the best value in the search space just became another highly competitive keyword.
Interestingly, Binghoo has taken a very different tactic on the trademark issue. They have virtually outlawed competitive trademark usage (see how friendly that sounds?) across the board.
So why the difference? Simply put, the more expensive it is for advertisers, the better it is for Google. Their defense is that the keywords are simply search triggers, and the advertisers keyword selection is up to them. If there’s controversy around it, then the advertisers should sort it out betwixt themselves.
Where do I stand on the issue? I’m no expert in trademark litigation, but the tangental issues of MegaUpload could bear out to an extent here. “Just playing the host” hasn’t played out well in front of Grand Juries (ask Kim Dotcom), but the results of that remain to be seen as well. Also, is an ad served as the result of a trademarked search the same as a movie or an album just waiting to be downloaded? Not at all, but the “we’re just the facilitator” defense will be used in both.
At the end of the day, though, I anticipate the days of cheap brand traffic will remain a thing of the past. In the context of search, a keyword is a result trigger. The results are the results – whether they be paid or organic – limiting paid when organic is unfettered proves itself – relevancy dictates the result.
As for how we settle trademark disputes, I’ll put this in the same category where I house the resolution of patent disputes: Thunderdome.