Search engines work on word and character association. That’s a fairly obvious simplification of how an extremely complex algorithm can detect a topic or theme from a 2 – 5 word search string and deliver a list of websites having something to do with that subject. Words are powerful in any language but English is the unofficial universal language of the web and English is a very imprecise language. Words can mean any number of things in a language built on several other languages (such as French, Latin, German and even Swedish). Loaded with synonyms, antonyms and homonyms, communication in English often crosses many perceptual barriers. The Internet is mainly a text-based medium in that words are primarily used to convey the message. When the same words are used often enough by a company or corporation, or to describe products and services offered by a company or corporation, these words become essential to the message put forth by that company or corporation. In many cases, protecting the use of those words becomes as important as protecting a brand-name. This presents an interesting paradox. What happens to words when they are registered as trademarks such as the phrase “Just Do It” has been by Nike?
Google has faced this issue several times in the past, most notably in a continuing case with American Blind and Wallpaper. This case centers around the use of the words “American Wallpaper” in paid and traditional listings. When searchers type the keyword phrase “American Wallpaper” into Google, several sites used to come up before the sites owned by American Blind and Wallpaper, as did several AdWord advertisements for other companies selling home decorating products. Recently, the site owned by American Blind and Wallpaper, (decoratetoday.com) started appearing in the #1 spot, just ahead of another site, adwf.com which is a redirect to decoratetoday.com. AdWords spots no longer appear under this keyword phrase for American Blinds and Wallpaper or for any other company for that matter. Clearly, Google had succumbed to legal pressure and was limiting an advertiser’s right to use specific words that might be trademarked by other companies. That changed yesterday. In a move that will likely boost revenues and long-term legal costs, Google is once again allowing AdWords advertisers to make bids on keywords and phrases that may be covered by another company’s trademark.
While allowing bids on keywords and phrases that may be used by another company, Google is not allowing advertisers to pass themselves off as that other company or to use the trademarked term in the ad-copy or title of the AdWords advert. Google is not about to let advertisers subvert the marketing and branding efforts of their competitors. Google seems to be taking a fairly realistic view of the usage of words and language in the search terms used by consumers. When a search engine user types product specific words into a search engine, they may not be looking for that exact product. Instead, they might be using a trademarked word that has become what I call synonymous-slang terms such as “Fridge”, “Kleenex” or “Coke”. The word “Fridge” is by far the most commonly used word to describe a refrigerator but it is actually a contraction of the company name “Frigidaire”. Similarly, “Kleenex” is the brand-name of the facial tissue produced by the Kimberly Clark corporation but is the commonly used word to describe that specific type of product, regardless of the manufacturer. “Coke” is synonymous with both a beverage company based in Atlanta and an obnoxious narcotic derived from the leaves of the Coca Plant. Who’s to say what a searcher is really looking for when they enter these keywords or others with similar synonymous-slang terms into a search engine?
Quoted in today’s MediaPost, Douglas J. Wood, the founder and Chair of the Global Advertising Lawyers Alliance, says the incongruity between keyword buys and trademark infringement boils down to a similar problem that software-based adware companies face. For example, when a person orders a Coke at a fast food outlet, they’ll often accept a soft-drink like Coke, such as Pepsi. After being exposed to mass-market advertising, consumers often naturally confuse a brand-name product with competing products produced under different names. Similarly, consumers are prone to equating a brand-name with an entire category of products, as in the case of Kleenex.
Google’s move to allow advertisers to bid on what may be considered trademarked words will likely open the door to more revenue but will also undoubtedly present Google with litigation issues. It also allows advertisers to represent their products under keywords they feel will be used by searchers when looking for products of that type. According to Google spokesperson David Krane, “Our revised trademark policy significantly enhances the Google search experience and ensures that users are exposed to a wide variety of relevant, commercial information sources. This change in Google’s trademark policy removes an obstacle that had prevented certain advertisers from targeting their ads in the manner they believed most useful.” Whatever the outcome and whatever the spin, we expect to see costs rise in the future for brand and product specific keywords as bidding wars are started in order to claim the online market’s ultimate goal known around these parts as the Eyeball advantage. The more eyeballs viewing an ad, the more product pushed by that ad. With Billions of dollars at stake in the contextual advertising market, it is no wonder Google is willing to push the boundaries when it comes to the ownership of basic words.