Re: Estee Lauder sues Excite over keywords

From: Chris Tyler <chris_at_woodstock.proximity.on.ca>
Date: Tue, 2 Feb 1999 06:02:48 -0600 (CST)

RICHARD_at_TENAGRA.COM WROTE:
> This is absolutely NOT like putting up a billboard, placing
> a competing ad in the yellow pages or doing a brand
> comparison.
>
> In all the above advertising mechanisms, you see both brands
> side-by-side. There is no confusion what brand belongs to
> who. That is not the case in this instance. The nature of
> the keyword buy mechanism is that you ONLY see the ad
> attached to a particular keyword. Thus, you easily cause
> confusion in the marketplace by attaching an ad to a
> competitor's trademarked word.
>
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

But you probably *do* see the brands side-by-side. You see
the search results with the trademark brand-- which is the
content you are focussing upon-- as well as the
tangentally-related banner, which is (to be harsh) noise
alongside the signal. Buying a keyword does not (should not)
change the search results.


RICHARD_at_TENAGRA.COM WROTE:
> You are representing that term to the consumer as your
>own.
>
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

No you're not! You're just advertising in a related space.
You are ensuring that your ads are visible *next to* your
competitors.


RICHARD_at_TENAGRA.COM WROTE:
> But what is more disturbing to me is the practice of the
> trademark holder having to pay before a search engine will
> take the word away from a competitor. I understand the
> complexity of forcing a search engine to keep track of every
> possible trademark. But extorting money out of me to make it
> stop once the infringement is exposed? That's screwed up.
> Where else in the legitimate business world do I have to pay
> to stop someone from infringing on my trademark?
>
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Back to the billboard example: If the Ford dealer rents the
billboard that is across the street from their dealership,
they get to put up Ford ads. If they don't, then Chevrolet
gets the space. They can't sue the billboard company to make
the Chevrolet ads go away, because it's not Ford's space
(property)-- it's adjacent property.

Likewise with a search engine, it's not Estee Lauder's space
(web site, seach engine result) that is being trespassed, it
is adjacent space (an ad alongside the Estee Lauder search
results) that is being occupied by the competitor. The fact
that the space is adjacent to Estee Lauder's search result
makes it more valuable, in much the same way that locating a
billboard across the street from a car dealership may make
it more valuable-- and the contention between the brands
drives that value. You can bet that Chevrolet *specified*
that the ad was to appear across the street from the Ford
dealer, and likewise it's not unreasonable that a search
engine permits you to specify proximity to your competitor's
virtual real estate.

(NB: I'm not saying any of this is *good*, but that it is
reasonable).

--
Chris Tyler <Chris_at_Global.Proximity.ON.CA>
Global Proximity Corporation http://Global.Proximity.ON.CA/
Internet and Computer Consulting (519) 469-3439 / fax (519) 469-8653


========================================================================
------------------------------------------------------------------------
       This week's Online Advertising Discussion List sponsor:
                                Conducent

   Don't Buy Hope! Get a 94% User Response Advertising with Conducent!
     Place Dynamic Ads in Downloadable Software. Invest in Results!
 http://www.conducent.com/advertisers.shtm or eisenstadta@conducent.com

------------------------------------------------------------------------
========================================================================
Online Advertising Discussion List To Unsubscribe send UNSUBSCRIBE
http://www.o-a.com/ to online-ads-request@o-a.com



Received on Tue Feb 02 1999 - 07:10:59 CST