September 20, 2020

Trademarks and Ad Placement

Dana Blankenhorn at Moore’s Lore has some interesting discussion of the lawsuit between American Blinds and Google.

Here’s the background: When you do a Google search, the results page gives the search results on the left side of the page, and a few ads (marked as such) on the right edge of the page. The ads are chosen based on the words in your search; advertisers buy placement for particular search words. For example, a pizza restaurant in Princeton might buy placement on searches for “princeton pizza”.

American Blinds makes window blinds. If you search for “American Blinds” on Google, you will see (or at least, you would have seen before the lawsuit) ads for some of American Blinds’ competitors. American Blinds claims that this is a trademark violation, since Google is associating competing products with the trademarked name “American Blinds”. American Blinds says that Google may not sell competing ads keyed to the trademarked name, without the trademark owner’s permission.

Most people’s initial reaction is that American Blinds’ lawsuit is ridiculous and should stand no chance of succeeding. But Google already lost a similar lawsuit in France, and it already lets Dell do what American Blinds wants to do.

To give every trademark holder veto power over the placement of clearly marked ads on search pages seems like bad policy, whatever the law says. (If the ad-laden page were trying to mislead customers about who is connected to the trademark, I would feel differently; but that’s not the case here.) Creating so many vetoes would seriously cramp the ability of Google, or anybody else, to sell keyword-triggered ads, especially given how crowded the namespace has gotten.

Consider a hypothetical hungry traveler who searches for “princeton pizza,” wanting to survey his dinner options. If there’s a restaurant called “Princeton Pizza,” and it has a veto over ad placement on that phrase, the traveler will be frustrated. And it’s hard to see what other search the traveler could do to circumvent the trademark issue and get a list of pizza places in Princeton.

Perhaps Google could provide an “I mean the words I wrote, not the trademark” option, so that a search for “princeton pizza –notrademark” would display ads triggered by the words, ignoring any trademark vetoes. But it’s hard to believe that that would satisfy American Blinds or other trademark owners.

Another attempted solution is to say that a trademark owner should get a veto if the only reason consumers would search on the name is when looking for the trademarked item, but that there should be no veto if a consumer might plausibly search for the trademarked phrase for other reasons. That’s a useful distinction in theory, but such a test seems too tricky to apply in practice.

I can’t think of a good way to accomodate the trademark owners’ legitimate interests, without essentially shutting down word-based ad placement services. And in the absence of such a solution, it seems to me better to let the ad placements go on.

Comments

  1. Chris Brand says:

    It seems to me that this is due to their choice of a “bad” (i.e. descriptive) company name.

    If competitors’ ads came up when you entered “Apple Computers”, they might have a point, but “American Blinds” is just an adjective describing a noun. It’s hard to see what other search term I should use when looking for blinds made in the states.

  2. I think, if I were Google, that a search for “American Blinds” would return a blank page, with the suggestion that perhaps you wanted to look for “Blinds American”.

    And that other search should not return any links to American Blinds unless A.B. paid for them.

  3. I think the best solution would be to return to basic trademark principles and only find liability if there is a likelihood that consumers would be confused or misled by the ad (i.e. if it misleadingly suggested a connection to American Blinds). Absent confusion, the trademark owner has no “legitimate interest” in preventing an otherwise beneficial practice that helps reduce consumer search costs. At least that would be my view. Unfortunately, some courts have leaned in the other direction (reflecting the trend of unthinking “propertization” of IP). The issue is still an open one, being worked out in the courts.

  4. aNonMooseCowherd says:

    One partial solution would be to look at capitalization, so that a search for “American Blinds” (capitalized that way) would point to the company of that name, but a search for “American blinds” would be treated as a generic search.

  5. Peter McCarthy says:

    Did a quick look on google. Looking for American Blinds gets ads for blinds on the right of the screen. One also gets similar ads (for window-type blinds) if one looks up ‘duck blinds’ (as in hunting). The keyword seems to be ‘blinds’ so trademark would seem to not be an issue.