Hearts on Fire alleges that Blue Nile purchased ‘hearts on file’ as keyword, and used that term in the text of its ads, but does not offer HEARTS ON FIRE diamonds.
Here’s an idea for a law journal note: compare the approach of the German court in the AIDOL case (BGH, 8 Feb 2007 (sic), Case I ZR 77/07 – AIDOL), holding that the use of a trademark in white-on-white writing (presumably to game the search engines) is a form of trademark use, with that of, say, the Eastern District of NY in this meta-tag case (emphasizing that meta-tags are not perceived by consumers). Via INTA Bulletin.
“In view of the inconsistent decisions regarding metatags, especially in light [of] the conventional wisdom among search-engine specialists that metatags do not affect page rank, it may be the case that lawyers have not effectively educated judges as to metatags’ function, importance and how they are perceived, if at all, by the user,” said Martin Schwimmer, a copyright and trademark specialist at Moses & Singer in New York.
An Arizona district court has ruled that the surreptitious use of trademarks doesn’t create a likelihood of initial interest confusion, granting summary judgment on the trademark claims to the defendant.
This case is another enforcement action brought by a manufacturer trying to keep its goods from leaking out of its restricted channel and being sold on the Internet.
While US courts have (mostly) finally realized that simply selling search terms based on someone else’s trademarked name should not make Google liable, French courts haven’t been so enlightened. The huge fashion retailer Louis Vuitton won a lawsuit against Google, because some advertisers had purchased search ads on the term “Louis Vuitton” to advertise “Louis Vuitton Fakes” and “Louis Vuitton Replicas.” It’s hard to see the common sense reasoning to support LV in this case. In fact, the ruling seems problematic on two separate accounts — both on the question of whether this was a trademark violation and whether it’s Google who should be liable even if it is a trademark violation.
Also: NY Times: “Google and Louis Vuitoon Face Off in Trademark Spat”
Someone filed application77/171330 for SEO covering “Marketing services in the field of computers in the nature of providing marketing services for the benefit of others by compiling advertising campaigns, promotional services, and consulting for customers.” Several third parties opposed, alleging, among other things, that SEO is a generic term standing for ‘search engine optimization.’ Coverage here.
Film at 11.
Multi-lingual Search.com: “Google Trademark Bloodbath In The UK“:
Google has changed its trademark policy for the UK and Ireland bringing it into line with its policy for the US and Canada. What this means in practice is that for trademark complaints relating to its Adwords programme, from now on Google will take NO further action relating to the trigger keywords. It will, however, continue to support requests relating to the use of trademarks in the creative – in other words in the sponsored links. See a typical notification below. The new policy comes into force from the 5th May – but the deadline for new trigger keyword applications was effectively the 4th April.
The Laboratorium: Rescuecom Oral Argument Report.
Cabel.name: Japan” “URL’s Are Totally Out”, wherein the author notes a trend in Japanese advertising to encourage viewers to type in a certain term into a search box instead of navigating via a URL.
It makes sense, right? All the good domain names are gone. Getting people to a specific page in a big site is difficult (who’s going to write down anything after the first slash?). And, most tellingly, I see increasingly more users already inadvertently put complete domain names like “gmail” and “netflix” into the Search box of their browsers out of habit — and it doesn’t even register that Google pops up and they have to click to get to their destination.
The author concludes that in the future, the url window and embedded search window will trade sizes to look like this:
I think that this if this is in fact the trend in Japan then it is very important for trademark owners. When I ponder things like the PPC industry, and domain tasting, and front-running, and a seemingly endless parade of sunrise periods, and an endless stream of emails from the Intellectual Property Consitutency of ICANNs seeking written comments about the latest outrage, I am left with the conclusion:
The domain name system is damage and the trademark community should route around it.
I think that educating the audience to use search engine terms rather than URLs is a step in that direction.
Thanks to Cabel for spotting this.
NY Times: A New Tool From Google Alarms Site:
Retailers and publishers have fought hard to work their way up in the ranking of Google’s search results and refine the search features of their own Web sites to help users once they arrive. Now, Google is taking a greater role in helping users search within particular sites. And some of the same retailers and publishers are not happy about it.
Alan Rimm-Kaufman, an Internet consultant, said Google might be asked at times to turn off a new feature. This month, the company introduced a search-within-search feature that lets users stay on Google to find pages on popular sites like those of The Washington Post, Wikipedia, The New York Times, Wal-Mart and others. The search box appears when someone enters the name of certain Web addresses or company names — say, “Best Buy” — rather than entering a request like “cellphones.”