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Eric Goldman points to a recent ruling that declared purchasing an ad based on a keyword (a practice currently allowed by Google) to be a use in commerce.
Eric also points out that there has been split rulings on whether this constitutes a use in commerce:
The court is right about the majority vote, but it’s hardly a strong majority. According to my count [Eric's count], the vote was 7-to-6 before this ruling. However, all 6 no votes are in the 2d Circuit, so geographically there is a stronger basis to characterize the rule as the majority rule..
We’ve been of the opinion that Google’s position regarding keyword usage was relatively secure. However, if court decisions continue to rule this way, that position may erode over time.
Trademark use management remains one of the greater challenges for brands that maintain affiliate programs. Most of the sessions that I’ve been to so far touch on trademarks and their use/abuse at some point over the course of their talk.
Andy Rodriguez touched on setting and monitoring policies for keyword bidding in his Sunday session on ‘Affiliate Marketing Basics for Merchants’. He correctly identified these policies as frequently overlooked by new merchants. In fact, we’ve seen evidence of PPC Policy abusers that target new merchants exclusively.
This morning, all of the speakers on the ‘State of the Ad Networks’ panel touched on the success of search marketing affiliates coupled with the challenges inherent in ensuring compliance of the affiliates.
I’m expecting similar points to be made in these sessions:
I’ll add content from these sessions as they progress.
A few months ago, Yahoo began running search ads with an icon that resembled Google’s checkout icon.
They have since reverted to their original design - the icon to the right of the title:
Posted in ACPA, case law, cybersquatting, domains, typosquatting
05 Aug
The US district court in southern California recently granted an injunction against Navigation Catalyst (nofollow) and their bulk registrar Basic Fusion (nofollow). Navigation Catalyst is definitely among the larger domain companies and had engaged in heavy ‘domain tasting’, the registration of domain names to test them for traffic.
This case is significant because it is the first time that a large domaining organization lost a legal battle on the grounds of ACPA. I could easily see publicly traded companies (Marchex?) in the cross hairs soon. It is also the first time that an injunction has been granted against a registrar.
Background
Navigation Catalyst has seen a few domain disputes before, but based on their testimony they do take several notable steps to avoid registering trademarks:
However, it would appear that they didn’t really follow this practice closely. A look at the list of domains they own (submitted by Verizon as an exhibit) demonstrate rampant cybersquatting. I see hundreds of typos of Abercrombie, Bank of America, Cingular and Disney among many others.
Navigation Catalyst also holds a number of valuable more than just that of registrar/customer.
The injunction wasn’t all that significant. It just prevents both parties from registering typos of several of Verizon’s brand names. However, to quote Eric Goldman:
it’s clear from the strongly worded opinion that Verizon will get paid if the case gets that far
Posted in Uncategorized, auctions, counterfeits
14 Jul
The judge in the 2004 lawsuit between Tiffany and eBay has finally ruled, dealing an important victory to eBay and providing a setback to Tiffany and other manufacturers that frequently find counterfeit goods on auction sites.
Tiffany had hoped to require eBay to proactively examine all auctions to determine if the goods being auctioned were counterfeit. The two of them work together on removing counterfeit listings, but typically eBay only responds if Tiffany tells them of a counterfeit.
It isn’t that eBay doesn’t monitor auctions or provide support for trademark owners. CNET reports that:
eBay says it spends $5 million a year in maintaining its fraud search engine, which has 13,000 rules that are designed to identify counterfeit listings based on words such as “replica” or “knock-off.” Listings flagged by the search engine are manually reviewed by customer service representatives.
In addition, eBay offers a Verified Rights Owner (”VeRO”) program that lets trademark owners report and remove infringing listings. Tiffany is one of more than 14,000 companies and individuals participating in the VeRO program.
More on eBay’s VeRO program.
This decision is nearly the direct opposite of the one handed to ebay in France, where LVMH was awarded a $61M judgment because eBay did not police counterfeits well enough.
Significance
Today’s clearly reinforces the burden of trademark policing to the trademark owner. In fact, the US District judge Richard Sullivan goes as far as to state that explicitly in his decision:
The court is not unsympathetic to Tiffany and other rights holders who have invested enormous resources in developing their brands, only to see them illicitly and efficiently exploited by others on the Internet. Nevertheless, the law is clear: it is the trademark owner’s burden to police its mark.”
Update: As usual, Eric Goldman has an excellent writeup.
Reverse IP geo-targeting is one of the most commonly used techniques by trademark infringing affiliates. They hide themselves from occaisional monitoring by showing their ads to every geography except the geography where they believe the brand-holder is monitoring from.
For example, Gap’s corporate headquarters is located in San Francisco. A Gap affiliate could target their ads to every city except San Francisco, or every state except for California. At the time of this writing, searching for ‘Gap Coupons’ in CA would turn up no ads. However, the same search conducted from our offices in Seattle turned up this ad:
As you can see from the bottom of the ad, it has been targeted to users in WA. I’d expect to find similar ads in 49 other states.
Identifying Reverse IP Geo-targeting
There are a bunch of ways that you can identify this. The most commonly suggested method is to utilize a proxy server to browse with a different IP Address. I find it easiest to use a service such as Google Translate, or Yahoo Babelfish.
If you are utilizing an automated monitoring system, you should make sure to ask how the monitoring system circumvents reverse ip-geotargeting. Look for systems that conduct searches in multiple locations. Of course, if you are using PoachMark to monitor your search advertising, we do this automatically.
While most lawsuits involving trademarks and search engine advertising identify the search companies as defendants, CNET recently covered a lawsuit between two competitors that sell identity theft protection services. Namesafe, sued Lifelock in the federal district court of Tennessee for trademark infringement and is seeking damages, attorney’s fees and an injunction against Lifelock.
The ads in question:
The search engines all have processes in the US that allow trademark owners to request that the trademark term not be allowed in ad text (or titles). Namesafe claims that they attempted to utilize these channels but had no success and the lawsuit was their only recourse. We’ve mentioned in the past the giant holes that exist in these filters anyway.
Lifelock asserts that they did not buy the ads themselves, but that one of their affiliates purchased the ads. I expect this case to be settled, however it would be very interesting to see it ruled.
Either way, it is becoming increasingly important for merchants to police their affiliates.
Thanks to SearchEngineLand for the pointer.
John Gartner has a good piece in Revenue magazine about trademark poaching, correctly identifying it as an up and coming challenge for affiliate marketers.
Trademark poaching is attractive because of the low barrier to entry. For just the price of a PPC ad, publishers can quickly generate handsome commissions without the usual affiliate administration overhead, and reducing the steps from click to purchase increases the likelihood of a purchase.
He also goes on to identify that it is a problem faced most often by new merchants that are unaware of the practice:
One PPC affiliate, who asked not to be named, says there is a “pack of about 30″ PPC affiliates that closely monitor the list of new merchants at every network and “crank up campaigns on them all” in order to profit from this behavior.
We’re pretty excited to be putting together a service that helps identify and monitor this type of abuse and thrilled that the practice is seeing increasing popularity.
The WSJ published an article today about trademark ‘piggybacking’ in Google’s search advertising, and the growing resentment of the practice by Google’s advertisers. They use the term ‘piggybacking’ to refer to the use of:
major players’ brand names, slogans or other trademarked words in the text of search ads to lure Web surfers to their own sites.
Obviously, large brands aren’t very favorable towards this practice and the article goes on to reference several lawsuits that have been around for awhile.
However, the examples that the WSJ provides are probably the result of companies that haven’t notified Google about trademark usage. Google does enforce trademarks, but only if the trademark owner has requested Google enforce them.
While this is certainly a common practice, we’ve found true to their word when they block the use of trademarked terms in ad copy. However, this doesn’t apply to display URLs, and it also doesn’t apply to slight variations in the trademarked term.
For example, take a look at this search for Macy’s Coupons:
Brand piggybackers are using these terms to get around Google’s filtering:
Clever - especially since most of these ads are run by Macy’s affiliates. Certainly more difficult to accurately catch these examples than exact usage of trademarked terms.
Simply put, brands need to be aggressive with their trademarks. They can sue Google all they want, but unless they take proactive measures their brands will continue to be abused.
Stephen Heise (via SearchEngineLand) identifies some advertisers that are cloaking their AdWords URLs:
spammers create ads that display your URL but redirect to a spam site of their choosing, cloaking the redirect so Google can’t tell what’s going on.
This is actually a close relative of Referrer Laundering and uses many of the same techniques. In fact, referrer laundering wouldn’t be possible if advertisers weren’t able to fool the AdWords bot using the cloaking technique that Stephen mentions.
The techniques that these ’sploakers’ use are reasonably sophisticated and frankly kind of hard for Google to detect via bots. They utilize server side code to examine the request and determine if the ad is from a Google IP or contains a Google referrer. If the IP is Google’s, the website serves a different page.
Unless Google intends to hide/mask their bots (which portend all sorts of issues), they will be reasonably easily identified.
Google has (at least) two weapons against these techniques: their toolbar and the wealth of information it provides about user activity (you do have PageRank enabled don’t you?) and their web accelerator proxy. They don’t need to find every ad - they just need to identify advertiser accounts (which tend to have lots of ads) that are using deceptive techniques.