Blog homeMy last blog post about the Google trademark question was called a “cheap and inaccurate shot” by the MD of Teletext Holidays Matt Cheevers. (See original blog post)
Matt Cheevers goes on to say, in a comment on this blog, that they don’t bid against the TourCMS trademark (EU registration number 4735635)…. but against another related term (Tours) - and, I assume, that he therefore suggests that Google are to blame for his advertising coming up against the single keyword “TourCMS” search term. I accept all that - and I agree - I can’t see any reason why they would be bidding on the TourCMS keyword. We sell tour operator software - he sells holidays.
[Context - Teletext Holidays are taking Directline Holidays to court in London because Directline Holidays are appearing on search terms that are trademarked by Teletext Holidays]
So - if I read this right - the MD of the company that is commencing legal action against a competitor about Google advertising agrees that just because an advert appears against a search term on Google this doesn’t mean that the advertiser is bidding on that search term. Hence broadmatching without negatives is apparently fine.
[Yes I appreciate that the because TourCMS is tour operator software and Teletext Holidays is travel there is lower risk of passing off - hence this, in law, isn’t quite the same as the Directline / Teletext holidays case]
This is where it gets interesting.
Scenario #1
Directline Holidays are indeed bidding on the Teletext holidays keyword. Not sure what the outcome is here….. I guess this is why it goes to court.
Scenario #2
Directline Holidays are not actually bidding on the Teletext search term - but happen to be appearing on the results because of the way that Google works. This is where these questions become complex:
- Is there an onus on Directline Holidays to add negative keywords to Google to ensure that they don’t appear on the search results for trademarked terms?
- Will Google be required to show advertising records to the court? (to demonstrate whether Directline are advertising on the trademarked terms - or whether Directline have made any attempt to not appear on the search terms under discussion)?
- Is there a difference (in trademark law) between the action of “bidding” on a search term (which is under the control of the advertiser) and the action of “appearing” against a search term when used in Google (which is partially under the control of the advertiser - but also partially under the control of Google).
What I think every search engine advertiser wants is a nice and simple decision flow chart that covers what we should all be doing right now. If there is an enterprising lawyer out they there could probably create one and sell it online for 50 GBP (100 USD) a time…. and they would probably sell hundreds.
[Disclaimer - Neither Teletext Holidays nor Directline Holidays are clients - nor do I, to my knowledge, know anyone well who works at either of the two organisations - hence there is no reason for me to take one side or the other]
[2nd disclaimer - I am not a lawyer - this is not legal advice]
Something tells me that the event that the TTI are organising a few weeks time (June 17th 08) - A morning with Google travel (where I will be on the expert panel) - will be fun. See TTI site for details
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