someone uses a competitor’s trademark as a keyword. Even if you say nothing about the competitor’s product; do not claim to be the competitor nor attempt to deceive the consumer, you should not be part of the results. According to Rescuecom, the unseen use of the keyword creates an assumption in the mind of the consumer that you are, in fact the originator of the product. In other words, you are selling the product they searched on. Although Rescuecom concedes that the practice of associating one product with a competing product off line is a common practice to which consumers are accustom, doing something similar online, they say is beyond the consumer’s comprehension.
One of the presumptions of this lawsuit is that once consumers select a brand or product on which to search, they are only interested in that brand / product and nothing else. I have to say, if Google thought there was any merit to that, they would have that factored into the algorithm…oh, they did.
If Rescuecom’s (appellate Court pdf) argument has any merit, biding on competitive products and brands will become cost prohibitive. Your quality score will go down, your ranking will go down, your costs will go up and the ROI will erode to an unsustainable level
However, the fact is that is not what happens. In the automotive category for instance, consumers are up and down in the funnel throughout the purchase process. Yahoo! conducted a study last year that showed a distinctly non-linear path to the purchase of a car. I would propose that preventing bidding on competitor keywords is actually a disservice to the consumer (Yahoo!’s policies are ironic). Here, they are seeking to fill the consideration set with comparable products and services. As purchase involvement of any product category increases, so does the competitive set the consumers want to have.
I was further struck by the assertion that consumers would be confused by this form of advertising because they were not accustom to online advertising methods and would therefore be confused into believe the competing brands and products were actually those of the searched brand.
This argument brought to mind the Louis Vuitton case from a few years back. That was when retailer Burlington Coat Factory sold look-a-like bags in an attempt to capitalize on the LV craze. The courts initially said there was no infringement because the two bags could be distinguished when place side by side. This was overturned in appeals because the bags were in fact not sold side-be-side, thus preventing the consumer from making distinctions between them. Some commentary here.
Rescuecom tried to apply other presidents(pdf) as well. If you review Google’s brief(pdf), I think it is clear that Rescuecom is reaching. The very nature of the online world is access to vast amounts of information. In fact, the search function allows for just what the courts in the LV case originally said was needed to make this okay – side by side comparisons. This just happens to be on screen… with access to vast amounts of information to verify any claims and seek clarity in the event of confusion.
I read Gordon Hotchkiss’ blog today and can’t help but think the folks at Rescuecom are similar to the school administrators he mentioned; very smart, but terribly out of touch with the new realities that the Internet affords us.
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