no good deed . . .

2/8/2005

Last Friday a French court ruled that Google had violated the trademark of luxury goods maker Louis Vuitton by allowing competitors to place ads adjacent to search results triggered by a search for the company's trademark. This follows another European court that ruled against the search engine and internet services company in a case brought by Le Meridien Hotels. One of the facts that swayed the court was the demonstrated stupidity of the internet user. Despite google's best efforts to label sponsored links as "Sponsored Links," and to separate the sponsored links from the general search results, recent studies, including one by the Pew Internet & American Life Project, that show that a large number of internet users cannot make the distinction between paid and unpaid search results. The lowest common denominator may be infringing on commerce on a continent near you. Stay tuned.

The problem with the internet, in general, is that it is a very new medium, and our thinking about it, as a culture, has not matured enough to begin making informed decisions about things like intellectual property, trademark, fair use and copyright. There are the egregious examples of blatant theft that do not require a paradigm shift to adjudicate such as the use of a copyrighted image or text without permission. Where the area becomes grey is in the protection of trade names. The interest of trade name protection weighed against free market ideals and the interest of unbiased information have created a sphere of law in the adolescent throes of finding itself; the path has been rough and uncertain.

Take for example the 1999/2000 battle of etoy.com v. Etoys.com that begged the age-old question, 'What's in a name?' A judge in San Diego enjoined the online art collective etoy.com from use of their domain name at the request of online upstart retailer Etoys.com. These Swiss artists were interfering with sales. Thus began parallel battles, one waged in the courts and the other (known as the toywar) in cyberspace. Etoys.com suggested that the similarity in name of the two sites would confuse online users. People who mistakenly keyed in etoy.com would be directed to a site dedicated to an absurdist post-modern meta-reality, and not to the latest release from Mattel. This obstructed commerce and infringed on the newly established trademark of Etoys.com. The main obstacle to Etoys.com argument was the fact that etoy.com predated the online toy retailer by a good four years. Couple prior use with the fact that etoy.com is, on its face (and first level of analysis) a corporate entity engaged in its own commerce (po-mo though it may be) Etoys.com was, in time, vanquished. The intersection of level legal minds and the complete breakdown of internet startups capsized the attack on etoy.com who graciously offered employment to the CEO of the Etoys.com, knowing he would soon be looking for a job.

The one great parallel between the Etoys.com argument and that of Louis Vuitton is that people are too stupid to navigate this new medium without having some array of protections in place to prevent them from making the wrong decision. In a sense they are right. Web users are, for the most part, completely clueless about the intricacies in the internet. I can confess, from personal experience, that a number of developers of online real estate are clueless as to the intricacies of the internet. The internet is a complicated place where a lot of things happen behind the scenes that everyone takes for granted. The more I know about the internet, the more surprised I am that it works at all. When we speak of the internet, we're not talking about a global "superhighway," like the interstate system, that is uniformly administered and maintained. If we are to use the road transportation analogy, the internet is a combination of interconnected private roads. Some of them are very well maintained toll roads with a smooth surface and no potholes. Others are tracks in the sand or rutted trails. Combine the lack of standards with regard to road surface with millions of unlicensed drivers and no way to enforce a speed limit and you get a sense of the chaos that is barely contained. I remember hearing an anecdote about the first traffic fatality. A horseless buggy ran down a pedestrian, and the remark was made that such a tragedy should never again be allowed to happen. Apocryphal, no doubt, but illustrative nonetheless. We may winch slightly at the thought of traffic deaths today, but only because we know we could very well be next. Our thinking about the dangers of automobile travel has adjusted over the last hundred years. The net benefit of rapid reliable transportation overrides the possible dangers. In kind, it is appropriate that our thinking about the internet change as we better define its role in our society.

Anytime something new comes along we love it, we fear it, we hate it, we pass laws regulating it, we attempt to press it into the same box in which the previous "something new" was packaged; this is where the French courts got it wrong with the Google v. Louis decision. Vuitton presumed that google.com was one particular space that is controlled by google.com and that, by creating the AdWords program, they were defining a commercial space akin to other media. In a sense this would be true, except, with few caveats, google.com was created so that the site would, in a sense, run itself. The content of google.com is compiled by relevance algorithm, not human intent. The search results for Louis Vuitton are not complied by an individual at a desk. The space of the search results is a reflection of the areas of the internet that match google's relevance algorithm. This algorithm changes over time. The changes help return better and more relevant results as a reflection of the available online content.

Google created its AdWords program to help retailers and site administrators overcome the search results algorithm while still providing links to relevant content. The idea behind the AdWords is to create ads relevant to specific search terms and pay Google a fee every time someone clicks on your ad. Search results are a dynamic space that is reconfigured each time someone submits a new search query. In addition to serving the unpaid query results, google.com also displays ads based on keyword selections of advertisers. These ads are examined by reviewers to ensure that the content of the ad reflects the content of the site to which they point, and that the keywords selected by the advertiser are somewhat relevant to the site's content. If you want to intersect your market, you have to position your ads where you market is searching. Remember that search results are based on page content that reflects back the relevance algorithm. I tested the query Ford Truck. The top sponsored link was for carpricesecrets.com. Clearly this site does not sell Ford Trucks, they sell information. Nowhere on the page the ad was link to was there mention of Ford Truck. This doesn't mean that the ad is not relevant to the search. It's a more efficient use of carpricesecrets.com's resources to purchase sponsored links that intersect their market than try to create unique pages that, through reflecting keywords back to the search algorithm, would appear in the unpaid search results, especially if they want to target searches of each make and model of production automobile.

The interest served by the search results is not to promote or protect a particular trademark. This is because the intent of the search is, to a large extent, unknowable. In my sample query of Ford Truck my intent was to see what ads would be displayed with that trademark. Another user's intent may be to purchase a new truck (which would make the carpricesecrets.com ad very relevant), find listings of used trucks, find a community of Ford truck enthusiasts, or search for recall notices associated with the Ford truck that they already own. Likewise, a search for Louis Vuitton may be a query intended to discover sites related to the LV mark, or could be a general query relating to the luxury goods channel. Perhaps the user is looking for high-end luggage and knows that Louis Vuitton makes luggage that is very expensive. The user might also be specifically looking for Louis Vuitton look-alikes. Sure, Vuitton & C. would prefer that you not know that such items exist, but so long as the items are marketed as look-alikes, and they do not violate international copyright or patent law, it is fair that the market, and in this case an internet search query or ad service, reflect that.

It is fair that competition be allowed to flourish in the online sphere. If a user makes a query for Louis Vuitton, it is a greater commercial interest that Prada be allowed to advertise in the space that is created by those search results than LV have its trademark protected. If I were going to the Louis Vuitton factory outlet store, here in downtown Omaha, and there was a Prada store next to it, there would be no trademark violation if Prada had a window display of overpriced handbags that I had to walk past to get to LV. My intent was to discover Louis Vuitton, but in the process I was impressed by Prada. (NOTE: There are not, in downtown Omaha, either a Louis Vuitton or Prada factory outlet store. This was for illustrative purposes only.) To limit the use of trademarks as keywords within AdWords would afford the internet a veil of protection not afforded any other medium. If I thumb through my Vogue magazine and there are adjacent ads for competing designers, the proximity of the image impressions does not create an unfair environment. And, if a new luxury goods manufacturer were to place an ad in Vogue that was on a page facing an established trademark, the newcomer would enjoy a boost of recognition from that proximity without violating the trademark of the known quantity.

The new medium of the internet requires new thinking about intellectual and commercial trademark properties. A potential future result of decisions like that of the French court could be the enjoining of not only sponsored search results, but also general search results that do not promote a particular trademark. This would be very helpful to companies that employ business practices that some view as unfair or unethical. Don't want people to know that you're using sweatshops? Enjoin search engines from producing consumer watchdog sites in search queries that use your company's trademark. Search engines, such as google.com serve the vital interest of providing relevant information to user queries. Whether the results are paid or unpaid, the test of relevance, and not trademark protection, should be applied to the content of the query results. To do otherwise is to serve corporate marketing interests over the general community's interest.