TRAFFIC DETOUR Some flower shops have noticed their shop names
being used as AdWords for other online flower sellers. AdWords are
the underlined, bolded text (Nike Official Store and Nike Shoes) in
the sponsored-links shaded box.
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You are here: Home Top News Top News When Google AdWords Lead
Your Customer to a Competitor December 22, 2010
When Google AdWords Lead Your Customer to a Competitor ( Public
)
After many months of experiencing healthy increases in online
sales, a florist in the Midwest was shocked to see its Web site
sales plummetbeginning about a week before Valentine’s Day. That
shock was nothing compared to what the shop owner experienced when
he did asearch on Google for his company name — we’ll call it “ABC
Florist” (with ABC replacing the family name). The top sponsored
listing read“ABC Florist,” but the link under it was for
ProFlowers.com.
The florist, who asked not to be named because of ongoing legal
proceedings, is not the only business owner who has been, in his
terms,“Googled” by another floral company. In fact, there’s no
apparent law prohibiting a company from purchasing another
company’s name orproduct as a keyword on a search engine.
But Google AdWords are a different matter— both in terms of
their power to the advertiserand their ability to confuse the
consumer.AdWords are the underlined, bolded text thatshows up as
the “title” in the sponsored linksafter a Google search. (See image
at right.)
The practice of using another company’s nameas an AdWord is
likely more common and lessmalicious than most retailers think,
contendsBrad Geddes, a search engine marketing expertwho writes
extensively about AdWords on bothhis own site and in several tech
publications.
“Most likely, (ProFlowers) is using anextrapolation tool to find
keywords and don'teven know it’s a company name they arebidding
on,” he said of what he described as a“pretty common” tactic for
large accounts.
Regardless of the advertiser’s technique,however, if the
practice ultimately confuses theconsumer, it could have a
trademarkinfringement case on its hands. “The definitionof
infringement is tied to consumer confusion,”said attorney Cydney
Tune, who leads thecopyright practice section at Pillsbury Winthrop
Shaw Pittman LLP in San Francisco.
Currently, the federal courts are split on the issue, Tune said.
Those that have ruled in favor of the advertiser contend that once
theconsumer clicks on the link, it’s obvious that the consumer did
not land on the intended site. The courts ruling against the
advertiser,however, cite “initial interest confusion,” contending
that, while the consumer is not confused once they get to the Web
site, Tune said, “TheWeb site has basically hijacked traffic,
because they’ve capitalized on initial interest confusion.”
In the case of “ABC Florist,” Tune said the florist may have a
“great case for initial interest confusion” in addition to whatever
case law at thestate level might work in its favor.
Google won’t comment on individual advertisers, or their ad
campaigns, said a spokesperson, who referred us to the
company’strademark policy. The policy details how Google
investigates when a trademark holder files a trademark complaint,
about the use of atrademarked term in ad text.
That policy reflects a significant change Google made last
summer when it began allowing some advertisers to use trademarks in
the adtext. In a blog post by Dan Friedman, a member of the Inside
AdWords team, he explained that resellers of certain trademarked
items, likeiPods or Nike shoes, can use that term as an AdWord even
if they don’t own the trademark or have permission from the owner
to use it.
Unlike a reseller of trademarked branded items, however, floral
companies such as ProFlowers.com are using the name of the florist,
not akind of flower or branded item, to direct visitors to their
site.
ProFlowers.com did not return calls or e-mails about the
practice, and the Google spokesperson did not answer questions
about whetherthat specific practice violates its policy, which
explicitly states, “Ads using the term in a competitive, critical
or negative way will not beallowed to run with the term at issue in
their ad.”
Regardless of the situation, Google will not intervene unless a
complaint is filed.
Geddes suggests filling out Google’s trademark complaint form
first, getting the ads removed, and then sending any future
screenshotsto Google when you see someone using your name. “If you
submit the trademark form, they can still use it as a keyword,” he
said. “Butthey won't be able to use it (as an AdWord).”
While going after Google might seem like the most natural course
of action, it has prevailed in several early cases of trademark
infringementwith keywords, according to Michael McCue, a trademark
partner with Lewis and Roca LLP in Las Vegas. “There are now
several suitspending against Google, but this is still a developing
area of law and it is unclear how it will be decided.”
The more effective, and less expensive, course of action is to
send a “cease and desist” order to the advertiser, as “ABC Florist”
has done.
In addition, having a registered trademark — while not
absolutely necessary to prove infringement — “offers a presumption
of trademarkownership and trademark validity, so you don’t have to
prove it,” said Tune. Plus, if a cease and desist letter has
registrations attached to it,“it gets more attention than just
saying, ‘I’ve been using this (name) for XX years,'” Tune said.
Try this:
Common law may protect your business name in your geographic
region, but online is border-free, so consider getting yourcompany
name trademarked. Get information here.If you see your company name
come up as an AdWord, file a complaint with Google and consult with
your attorney)Assign someone in the shop to do a search on your
shop’s name weekly, to check to make sure if its comes up as an
AdWord onanother business.
— Kate [email protected] Amanda [email protected]
Comments
deceitful websitesWritten by ksanner on 2010-03-06 10:03:50
We have had our website www.PerryHallFlorist.com for more years
than I can remember. Last year I noticed a competitorin the same
town use a listing www.PerryHallFlowers.com which then redirected
the person to their florist's
websitewww.FlowerExpressionsofPerryHall.com. This year they have
changed their deceitful name to www.PerryHallFlorist.net Wehave
fought the phone imposters in the past & were instumental in
having a state bill passed. All I want is fair trade to domy own
flower arrangements. How do I get this person to play fair?
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