Brand Spillovers by Prof Eric Goldman (to be published in the Harvard Journal of Law and Technology):
This Article considers the spillover effects of trademarks-in particular, “brand spillovers,” which occur when consumer interest in a trademark increases the profits of third parties who do not own the trademark. Using techniques such as loss leaders and shelf space adjacency, retailers routinely create brand spillovers for their profit, and trademark law generally has not restricted these activities. Online intermediaries, such as search engines, also create and profit from brand spillovers by selling manufacturers’ trademarks for advertising purposes (“keyword triggering”). However, in contrast to retailer practices, keyword triggering has sparked a heated and irresolute battle over its legitimacy under trademark law. By drawing lessons from retailers’ experiences with brand spillovers and through an analysis of the ways intermediaries can add value to consumers, this Article offers a new way to resolve the keyword triggering debate. The Article proposes that all intermediaries – including both retailers and online intermediaries – should be permitted to use brand spillovers as part of their effort to reduce consumer search costs, even if the intermediaries profit from the brand spillovers along the way.
Rainy day fun: put your client’s trademarks into this aggregated username search engine, to see if any usernames on the various social network sites incorporate those marks. HT to the Nipper.
NY Times: “Help for eBay Shoppers Who Can’t Spell“:
A handful of new Web sites with names like Typo Bay and Typo Buddy are out to help shoppers save money by searching eBay for misspelled brand names. Such items often have fewer bidders because they don’t appear in search results for people who spell the items correctly, and therefore can be had at a cheaper price.
MediaPost.com: Searchers Led Away From Brand Sites:
More than one in 10 U.S. Internet searches for leading brands end up clicking away from the brand owner’s Web site, according to a recent report from research firm Hitwise.
Legal Pad: “Tiny Law Firm Sues Google Over Search Results“:
The problems began with Google after Oct. 15, according to the firm’s trademark infringement suit filed in federal court last week. That’s when Powlen and Berger began punching “Global Law, 94105” into Google – let’s be honest who among you doesn’t spend most of the work day Googling your name? They did this on “several different dates” and found that the first search result read “Global Law, LLP” but linked to another law firm. Legal Pad tried it last week and found that indeed it linked to SF’s Schinner Law Group, which happens to be Powlen’s old firm.
Out-law.com: Argentine Search Engines Told To Block Famous Names:
Search engines in Argentina have been banned from linking to stories naming up to 100 famous people including football legend Diego Maradona in a move critics have said is tantamount to censorship.
Google and Yahoo! have filtered search results relating to the names on their Argentine sites but not their international ones, the companies told internet filtering campaigning organisation the OpenNet Initiative (ONI).
This lawsuit squarely revisits the ground covered in the Field v. Google case, which Google won for 5 different reasons–including that anyone who posts content to the web knowing that search engines display cached copies impliedly licenses the search engines to do so. Here, the search engines apparently obtained the copyrighted works from Parker’s site (instead of from some third party infringing site), and Parker admits he knew of the cache function. As a result, Yahoo and Microsoft can claim an implied license for their cached copies.
Money.cnn.com: “Google Slaps FindLaw In Effort to Crack Down On ‘Link Juice’:
“FindLaw, a subsidiary of the business information giant Thomson Reuters Corp. (TRI), built Newell his Web site last spring and primed it to appear in major search engines for a fee of about $1,600 per month. It was such a success that one year later Newell was willing to sign up for the SEM Advantage product, costing another $2,000 a month. Billed as a “high-octane” way to double or even triple traffic on his site, Newell and others like him understood FindLaw’s SEM Advantage product to be a package of well-placed links designed to lift a Web site’s standing in a Google search. But now they’re wondering if they’re still getting their money’s worth.”
I downloaded the new Google Chrome Browser. The URL window functions as a search window if you type in a term that isn’t recognized as a URL. If I type DELTA or UNITED or LLOYDS per se into the URL windows of Safari and Firefox, they convert that to Delta.com, United.com and Lloyds.com respectively, which statistically may be a good guess but may not represent what 100% of all users intend when using such terms. If I type those terms into IE, I get search results for those terms on MS Live Search (or Verizon’s search when I do this at home). Google Chrome, as you would expect, returns Google results for non-urls typed into the URL window. Search results add a click for users but doesn’t land users on an unintended page.
Both Live Search and Google, of course, may return keyword ads for competitors along with the organic search results.
I direct your attention to this post from March discussing URL-based navigation vs search from the point of view of a trademark owner, and speculation on how browsers may evolve in that regard. I view Google Chrome as one more potential step away from the primacy of the domain name in web navigation.