Re: Estee Lauder sues Excite over keywords

From: Robert J. Woodhead (AnimEigo) <trebor_at_animeigo.com>
Date: Tue, 2 Feb 1999 06:02:32 -0600 (CST)

RICHARD HOY WRITES:
> I have said on various occasions, both privately and at
> conferences where I've spoken, that sooner or later someone
> will get sued over this practice. Basically, Yahoo was
> telling me that I must pay them to stop infringment on my
> client's trademark.
>
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

I for one hope the suit fails. All the advertiser targeting
a competitor's trademarks is doing is saying "I am
interested in reaching an audience interested in one of my
competitor's products." He's not using the trademark in
commerce. He's not misrepresenting his products. He's not
using the trademark on his web-pages. And comparing one's
products to other competing trademarked products is
perfectly legal. There's no infringement as far as I can
see.

Similarly, the search engine is not making any
misrepresentations of fact. To my mind, the suit is a
loser. If Estee Lauder wins, then on any trademarked
keyword, the search engines will have to either not do
targeted advertising, or accept a below-market rate from the
only possible advertiser.

One wonders if advertisers, learning of an upcoming article
about one of their competitor's products, haven't
occasionally taken out magazine ads in proximity to that
article. I'm sure that's happened. It's just that on
search engines, it's easier to make the connection and the
advertising buy.

Is it "dirty pool?" Maybe. But for Estee to be able to get
those keywords el-cheapo would also be dirty pool.

It'll be interesting to see how it comes out. Richard, $20
says that if it actually gets to judgement (as opposed to
some face-saving settlement), it loses (though possibly on
appeal). In fact, I think there's a strong possibility that
some or all of it would get thrown out on summary judgement.

R
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Received on Tue Feb 02 1999 - 06:56:06 CST