Politics and IP
posted by Frank Pasquale
This extraordinary press release from the minority on the House Energy and Commerce Committee uses images from The Simpsons. Fox may be able to deter these uses, but so far is not doing anything. However, anti-MoveOn.org forces have not been so lucky–Google has prevented them from using the name “MoveOn” in their ads, ostensibly because of a neutral trademark policy that permits a mark owner to apply to prevent the use of its marks in others’ ads:
Recently, representatives of Senator Susan Collins’ Senate re-election campaign tried to place an ad on Google that included a reference to MoveOn.org, a political group. The text of this ad was rejected by our system because of our trademark policy, not because of its political content.
Under our trademark policy, a registered trademark owner may request that its mark not be used in the text of other parties’ ads. Some time ago, MoveOn.org submitted a request to Google that its trademark not be used in any ads, and as a result our advertiser support team offered instructions on how Senator Collins’ campaign could edit and resubmit its ad.
Any company or organization — regardless of political affiliation — could do what MoveOn did and thereby prevent advertisers from running ads that include their trademarks in ad texts. . . . [I]f ads are running on Google that include trademark terms in their text, either the trademark owner has not submitted a complaint, or the advertiser has been authorized to use the trademark.
Here’s a response from the president of the Media Bloggers Association:
There is no basis in trademark law to support MoveOn’s claim. Rather that blindly accept their claim why not ask them to explain the legal basis for their claim. Once you realize that MoveOn does not have a valid legal claim you can put Senator Collins’ ads back up.
Many questionable IP claims can gum up the works of free expression. I don’t understand why Google here would prevent what looks to be a classic case of nominative use. If the anti-MoveOn.org material appeared at the top of the unpaid results, I’d be in favor of giving MoveOn.org some opportunity to respond. But the paid ads described here don’t tend to frustrate people’s efforts to learn more about MoveOn.org.
Of course, the Collins campaign can make its case elsewhere. But “Google’s share of Web searches in the United States was 67 percent” in September, and such a dominant company may well need to revisit its policies. They should avoid unnecessarily restricting access to what may be becoming an essential facility. . . . or at least lobby for some explicit safe harbor.
UPDATE: MoveOn has backed down and will not object to the ads:
“We don’t want to support a policy that denies people freedom of expression,” says Jennifer Lindenauer, MoveOn.org’s communications director.
H/T: Eric Goldman.
October 14, 2007 at 5:17 pm
Posted in: Cyberlaw, Intellectual Property
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Responses (2)
anon - October 15, 2007 at 3:22 am
Presumably, Google gets thousands if not millions of requests for using trademarks in its ads. It cannot listen to each and every person coming up with their case on why their trademark use is non-infringing, and make a legal call. So the safe-harbour will either be complete–internet search engines have immunity for claims of secondary trademark infringement–or ineffective. Chances of such complete immunity I think are slight (and not necessarily a good idea, either).
William McGeveran - October 15, 2007 at 3:58 pm
Risk of trademark liability for Google because of a use by an advertiser is quite remote. First, a use would have to be infringing, and not a mere reference or comparative advertising. Senator Collins’ ad is safe on this ground. Most ads will be. Second, it would have to be secondarily liable, and the legal status of a search engine in those circumstances isn’t clear yet (as the ongoing keyword advertising cases and their split decisions show).
Besides, if Google is going to be secondarily liable, it isn’t clear that a policy saying they *would have* withdrawn the ad upon request of the markholder will help them avoid that liability if the markholder didn’t take the initiative to make the request.
It may be that some clearer legal exemption could help here. But Google is not exactly shy about facing down litigation in other contexts. Google has simply *chosen* in this policy to obey requests from markholders even though most will have very slight legal merit and expose Google to very slight legal risk. This is a business decision by Google that cannot be fully explained by law.
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