GoDaddy doesn't like our AdSense Keywords and Budget

[Banned User]

http://www.nationhosts.com/godaddy/

Thats a copy of a e-mail I received today from GoDaddy and I must say its sad to see that when someone else steps up with the same money pockets as them at Adwords they get angry.

In anycase I hardly think use of their registered trademark in a keyword for adwords constitutes as infringement and we are prepared to fight such in court.

 

[jberryhill]

Google had argued that it only uses trademarks in "internal computer algorithms to determine which ads to show," according to the ruling.

And, remember, Google's position in this situation is one step removed from the advertiser who selects the Adwords to use. If you intend to rely on the "I got it from the Adwords generator" position, you would do well to read the terms and disclaimers associated with that tool.

So, let's see, it is a proposition beyond well-proven that using meta-tags on a website constituting competitor's trademark is actionable. The rationale for meta-tag usage being unfair is that, in the old days, meta-tags could increase search engine relevance. There is a ton of cases on that subject.

But, for reasons that escape me, it is argued here that using someone else's trademark to increase search engine visibility through paid keyword ads is not actionable? How is it any different from the rationale associated with meta-tags (for which there are also automated generating tools)?

 

[RJ]

But, for reasons that escape me, it is argued here that using someone else's trademark to increase search engine visibility through paid keyword ads is not actionable? How is it any different from the rationale associated with meta-tags (for which there are also automated generating tools)?

Whereas meta tags that contained a competators tradermark would cause the offending site to come up in the actual search results when the trademark was searched, the Adword ads do not affect or replace the search engine results.

When a visitor to Google searches for 'GoDaddy', GoDaddy.com is rightfully displayed as the #1 result. At that point, Google has done their job and provided accurate search results and the user can visit GoDaddy.com.

The Adwords ads in question are clearly labeled as 'Sponsored Links' and displayed seperate from the main results (off to the side). The user is not being misled or confused into going to any of those destination sites. They are not being identified as being GoDaddy related sites. If there's an ad there that catches their eye, I would say they were not that committed to using GoDaddy in the first place.

Should Burger King be outlawed from placing a bus stop ad on a public road that leads to McDonalds?

 

[jberryhill]

Should Burger King be outlawed from placing a bus stop ad on a public road that leads to McDonalds?

That is a great example, and yes, the principle is somewhat similar. When you go into a store looking for Brand X aspirin, you will find all of the other brands of aspirin on the shelf. Your analogy to the billboard is a good one. Other examples are the neon "Budweiser" sign in the window of the bar that serves a variety of different brands of beer.

The problem is that the law hasn't quite reached that point of view. So, there is a difference between what the world "should" be like, and the way the world works in real life. Law has a tendency to look at new situations through the lens of previous situations that bear similarities. What lawyers do is to try to say that a present situation is more like one which resulted in the desired outcome than one which did not.

While paid keywords work differently than objective search results, the desired effect is the same - to get your link displayed prominently in response to someone conducting a search on that keyword. I agree with you that someone looking for information on, say, Mercedes automobiles might also be interested in obtaining information about BMW automobiles, since Mercedes and BMW are a type of German automobile. But, as mentioned by others here, there is something in the practice of using trademarked keywords that has a "free ride" feeling to it, which is the essence of trademark infringement.

 

[RJ]

I sure don't get that "free ride" feeling when my Google Adwords bill needs to be paid every month.

On the flip side, GoDaddy has this page that comes up in Google's main search results when someone searches for "Network Solutions". Are they enjoying a free ride on NetSol's trademark?

https://www.godaddy.com/gdshop/private_vft.asp?isc=&se=+&from_app=

And there are several other "Network Solutions" uses on Google indexed GoDaddy pages that appear in search results for that term.

https://www.godaddy.com/gdshop/comp...om_app=&prog_id=GoDaddy&rhl=hp_dom_txt_whypay
https://www.godaddy.com/gdshop/char...p=&mscssid=&pl_id=1&prog_id=GoDaddy&authGuid=

 

[jberryhill]

I sure don't get that "free ride" feeling when my Google Adwords bill needs to be paid every month.

Clearly one advertises for a reason. You would also have to pay to have someone make knock-offs of Nike sneakers. By "free ride", you'd sell a lot more ten-dollar sneakers on the street with the Nike swoosh on the side of them than not.

Are they enjoying a free ride on NetSol's trademark?

No. The reason is that the mention of Network Solutions shows up in the visible text of the page in the context of permissible comparative advertising. If you are Pepsi, you can run a television commercial in which you say, "90% of dead people prefer the taste of Pepsi to the taste of Coca-Cola" - Yes, they have "used" the trademark Coca-Cola, but they have done so for a factual comparison and to DISTINGUISH their product from the competitive product. Using meta-tags and paid keywords is not done for the purpose of distinguishing or comparing your product to that of your competitor. It is done for the purpose of attracting prospective customers in the first instance.

The effect of comparative advertising may indeed result in the appearance of search engine results, but much of what matters in the law deals with the subject of intent, not effect.

You might like this overview, if you are puzzled by the distinction: http://www.jolt.unc.edu/vol3/Sidbury.htm

 

[armstrong]

So if Pepsi were to craft an adwords ad based on a search for "Coca-cola", and say something like this (using the adwords format):

Looking for Coca-cola?
90% of cola drinkers prefer Pepsi
over Coca-cola in an independent test
http://pepsi.com

then this would constitute fair use? If so, then all Nationhosts has to do is craft similar clearly distinguishing advertisements.

 

[wlspro]

I would beg to differ with you both.

Consider this situation as a better analogy. You get in a taxi cab and tell the driver “take me to McDonalds”. On its way to your requested destination the taxi makes a stop in front of a Burger King and offers you to go there instead. Burger King compensates the driver by paying him a fee for his effort at swaying you from your clearly stated decision to go to McDonalds and not Burger King. Even if the driver reminds you that his suggestion is not your actual requested destination, and even if he clearly states that this stop is a “sponsored stop” it would still be improper.

It is one thing for you to see other restaurants and ads on the way to McDonalds - it is quite different for the driver to take you to the door of other restaurants in exchange for compensation by those establishments.

The comparison of this situation with meta-tags is very well placed. There are some similarities as well as some clear distinctions. While meta-tags may properly be used for description of a page they may also be improperly used merely for diverting traffic based on false and deceptive terms. This applies to both trademarks and non-trademarks.

While the courts have ruled that use of trademarks by competitors simply in an attempt to appear on search engine results is not proper they have also ruled that if the trademark is used in a truthful context to describe the page it does not violate the trademark owner’s right. If a registrar places the trademark “Godaddy” repeatedly in the meta-tag and also embeds it in the actual text to increase its standing in a search of Godaddy such use is deemed an infringement on Godaddy’s rights. If however the meta tag or the text make use of a truthful statement such as “better than Godaddy”, “cheaper than Godaddy” etc. such use is considered fair use.

See http://searchenginewatch.com/resources/article.php/2156551 for more.

This issue does not in anyway curtail the promotion of competitive advertising by competitors. It merely places limits when a product A is being offered to a customer when he has specifically asked for product B. It is ok to display Coke products next to Pepsi in a supermarket isle marked “beverages”. It is not proper to display Coke products on a shelf marked “Pepsi” - even if there is a small disclaimer below the Coke product indicating “sponsored beverage”.

Imagine calling the phone directory, asking specifically for Godaddy’s phone number, and being offered the phone number of a Nationhost instead - simply because Nationhost has agreed to pay the directory a fee every time it succeeds in diverting the caller to Nationhost instead of Godaddy! I maintain Godaddy would have a valid claim for filing a complaint against the phone directory and Nationhost for such a practice.

 

[armstrong]

Consider this situation as a better analogy. You get in a taxi cab and tell the driver “take me to McDonalds”.

I think the better analogy would be if you get into the cab and ask the driver, "tell me about McDonald's." The driver would then tell you what he knows, and probably about other fastfood restaurants as well.

It doesn't take a brain surgeon to realize that godaddy's website is at godaddy.com, so most folks who do enter "godaddy" into google's search box are in fact looking to find info about godaddy and its products, not asking for directions. So a competitor seeking to provide relevant info (about similar competing products) could make a case for using google adwords to deliver this message.

 

[jberryhill]

When you get into a cab, it is usually to go somewhere.

Brain surgeons don't decide these things. Having even a remote familiarity with the internet is not a requirement to be a federal judge.

 

[Acroplex]

Just search for GoDaddy in Google, then click on the sponsored link on the right. A couple of thousand times.

 

[armstrong]

When you get into a cab, it is usually to go somewhere.

Ok, time give up the cab analogy. Most of the time, when I enter a TM-keyword into the google search box, it's to find info about the company, its products, and maybe even its competitors; seldom is it to ask for directions to a company's website. Isn't this true for you, as well as most everyone?

Having even a remote familiarity with the internet is not a requirement to be a federal judge.

Maybe not to *become* a federal judge, but it should be a requirement that he has sufficient understanding of the case at hand before handing down his decision. If he does not, then that's why lawyers like you are around to enlighten the judge on both sides of the issue at hand. If required, then bring in expert witnesses, or bring in proof such as results of an unbiased public poll. If the judge still doesn't understand, then maybe you can bring back the cab analogy.

 

[aww]

Isn't the burden of a successful trademark in a free market to bear comparisons and targetting of their customers? As long as you make clear that you are not actually the trademark owner and do not make unfounded statements, isn't it all fair play? It's like clearly listing you are an affiliate.

The Pepsi taste test example above is perfect. They don't even have to claim that MORE people like their product. "Try Pepsi-cola today, you might discover as some others have that it tastes better than Coca-Cola" (okay terrible copy but you get the point)

ie. $7.95 domains: we're not GoDaddy - you might like us better!
Is there anything legally wrong with saying that?

 

[jberryhill]

ie. $7.95 domains: we're not GoDaddy - you might like us better!
Is there anything legally wrong with saying that?

In general, no, there is nothing wrong with saying that. That is also different from simply buying "GoDaddy" as an Adword.

And, yes, one can bring in all sorts of experts and commission all sorts of polls during litigation. However, unless you are in small claims court in Canada, it is going to be a long and costly thing to do.

 

[wlspro]

As I previously posted on this thread

”This issue does not in anyway curtail the promotion of competitive advertising by competitors. It merely places limits when a product A is being offered to a customer when he has specifically asked for product B.”

A Google search for “godaddy” yields 324,000 results. You can be certain that the vast majority of these are by entities “not affiliated with nor endorsed by” Godaddy. In fact the very first page has a link to a site stating “Godaddy sucks!” So criticism of and comparison with Godaddy is alive and thriving.

The issue is should Google make money when a viewer specifically ask for Godaddy and Google directs him/her to a competitor’s site.

We should first consider Google’s role in this whole situation. Is a search engine expected to provide an index of pages on the internet - based on criterion which are not completely financially motivated, or is it simply a sales outlet trying to maximize its profits by any means possible?

You go to a camera store, ask for a Nikon camera, and the salesperson suggests a Canon as alternative. His suggestion may be truthful or solely based on a promotion Canon is running which pays a bonus $100 for every sale during the promotion. Though one may argue this to be improper the buyer is expected to be aware of such tactics and factor in such biased suggestions when making a purchase from a salesperson.

You see a doctor and ask him about a medication A and if it suits your needs. He suggests medication B, not because it is better for you but rather because its manufacturer is offering a $10 bonus whenever he sends them a new patient. This I would argue is improper.

Not withstanding trademark laws and solely based on principals of equity one has to factor in the degree of trust placed on the other party. You want to find information specifically about Godaddy, and Google has and will continue to provide it (whether complimentary or critical). The question is should Google make financial gain for sending customers to the competition solely based on Godaddy’s trademarks.

You should note that Google has and continues to post “sponsored links” for sites which provide information about a brand name but which are not a competitor per se. Search “volvo” and you will see a long list of such ads on the right hand column by car buying services, car magazines, car review sites and car dealers. This is fine. But you do not and should not find a commercial link to another auto manufacturer’s sites with the sole purpose of selling their competing product and no interest in “educating” the consumer.

 

[billinchina]

I just typed in godaddy into google and it looks like myDiscountDomains.com is doing the same thing.

 

[wlspro]

You are absolutely correct!

What is worse is a search of “enom” yields 8 sponsored links by competing registrars.

Time for our attorney friends to make some more quick bucks

 

[domainlab]

If you type in nation hosts does GoDaddy appear...!!

Seriously, if this were to happen how would you feel. Before one gets reactionary about these things and see things from the other side.

I represent a large multinational based in the UK and we have had several instances of this happening and have knocked them bcak every time. I don't think I'm precious about these things but if you've spent a lot of time and omney building a reputation why should you let someone trade on that reputation by directing traffic away from you.

Regardless of whether it came up on the adwords suggested list - you are in the the wrong.

 

[anthonyjdoe]

Is it me or is Godaddy run by all women...that email had only women names in it..your in trouble man I don't think using their name in keywords is against the law, Pepsi uses Cokes name and vice cersa in ads all the time. As long as you don't make false statements and slander the name I think your cool. I'd email them back and tell them to send some pics other themselves they might be cute

 

[RJ]

Interesting arguements against the practice, but I still see the sponsored links as nothing more by alternative suggestions for the visitor. They are seperate from the actual results and should be treated as such.

The visitor asks for information on something, is given information on exactly that and seperately is given information on things they may also be interested in. I see nothing wrong with that.

 

[suthra]

There is nothing wrong in godaddy claiming like that. People type godaddy only to register domains. The term godaddy is branded in such a way that only domain registration comes to mind. I feel that you, using that keyword are trying to gain advantage of godaddy's effort since you are also in the same field.

If you advertise for anything other than domain registration for the keyword "godaddy" there wont be any problem.

You can advertise like:
Host with us and get domain free or something like that.

Try using the keyword "registerfly" ,searched for 400 times in august and no ads for that word!