Utah Bans Keyword Advertising

Eric Goldman writes "Last month, Utah passed a law banning keyword advertising. Rep. Dan Eastman, the Utah legislator who sponsored the law, believes competitive keyword advertising is the equivalent of corporate identity theft, causing searchers to be (in his words) 'carjacked' and 'shanghaied' by advertisers. He also takes a swipe at the EFF, dismissing its critique of the law as 'criticism from the fringes.'"

Re:Damn Straight!

[Anonymous Coward]

Before you dismiss these laws, read these posts discussing the problem and the legality:

http://senatesite.com/blog/2007/04/guest-blog-utah -trademark-protection.html [senatesite.com]
http://senatesite.com/blog/2007/04/constitutionali ty-of-trademark.html [senatesite.com]

This issue isn't as simple as the Slashdot hordes may make it seem.

FTC Doesn't Have Problem With This

[SkyDude]

Years ago the FTC green lighted advertisers to use a competitor's product in their advertising as long as it was for comparison purposes. In other words, Kellog's couldn't demean Post cereals, but they could (and do) make comparison ads. You know, "How many bowls of X does it take to get the same nutrients as Y"? Maybe I got the products and producers wrong in my example but you've seen thee ads if you watch US TV.

Searching on a term that brings up a competitor's product isn't a problem, it's just an extension of the example I mentioned.

Eastman sounds like the kind of politician Ed Markey, from my home state of Massachusetts is - utterly clueless. Markey is the chairman of the House Subcommitte on telecommunications and the internet but he's as dopey as Eastman - trying to regulate something he has little knowledge of.

Re:bullshit

[cpt kangarooski]

Well, partially, but the other big reason to have trademarks is to protect consumers. If you go to the store to get corn, and the various sources (i.e. businesses) from which the corn comes are identified -- Del Monte, Green Giant, etc. -- then you can expect that all corn with a particular trademark on it always comes from the same source, and will have basically consistent quality levels (whether good or bad). Other people cannot label their corn as coming from one of their competitors. By enforcing trademark protections, consumers can avoid being tricked in the marketplace.

But even if you want to discourage one business freeloading off of the commercial reputation that another business has laboriously established, and even if you want to ensure that like-branded goods are of like quality so that consumer expectations will be met, this does not mean that competitors cannot use each others' trademarks under the right circumstances! This is still a stupid law in that it is tragically short-sighted.

For example, suppose I grow corn, and unlike my competitors, I still use the time-tested method of waiting to harvest until I can rent an elephant and verify that the corn reaches eye-height. It is not an infringement or dilution for me to advertise that I do this and that my competitors, who I mention by name, do not. You see this all the time in product comparisons where actual products are mentioned instead of silly workarounds like 'Brand X' or whatever. It's called a nominative use, and it is legal.

But apparently not under this law! Utah doesn't think that if someone searches for Del Monte that Green Giant cannot leap into the fray and claim (if it's true) that their corn is better. Likewise, a grocery store can't advertise that they carry Del Monte, which is kind of important given that they don't seem to distribute directly from the canning plant to the dinner table. That's another nominative use.

There may also be difficulties with trademark fair use (which is a confusingly named but totally separate doctrine from the more well-known copyright fair use doctrine) which permits everyone to use words which happen to be trademarks in their non-trademarked capacity. For example, Apple is a trademark for computers, but apple is not a trademark for the fruit of the same name. If you search for 'apple,' and Google ignores case as pretty much everyone on the Internet must, then there's nothing wrong with the apple farmers buying up all the ads. But would this be allowed under this law? I'd be worried about it, and that alone isn't very good. Particularly given that if everyone passes or doesn't pass, their own version of this, it creates a patchwork of regulation and now I have to check all over the place.

Frankly, aside from not surviving on its merits, I predict that the Interstate Commerce Clause will kill this in court since it makes it too difficult for businesses to engage in commerce nationwide. If people really want this -- and I think it's not a very good idea -- then it would be more appropriate to get Congress to do it. States should not.

Re:Damn Straight!

[MindStalker]

No the bill bans linking competitors when there is a trademark. As in if I search for Toyota I should never see any ads except for Toyota. Google was sued about this and won, so the federal standard is the competitors trademarks are legit for keyword ads. Except in Utah now....

Re:Because illiterate tools are what /. is all abo

[civilizedINTENSITY]

No need for a "wide interpretation of the 1st", just awareness of The Commerce Clause [schwimmerlegal.com]:

The Commerce Clause to the United States Constitution provides that Congress has the power to regulate interstate commerce. (U.S. Const. art. I, sec. 8). This provision also has a "dormant" aspect that "prohibits state . . . regulation that discriminates against or unduly burdens interstate commerce."

Re:Damn Straight!

[wclacy]

So you would be OK if Microsoft purchased all searches for RedHat, SuSe, Ubuntu, Mac, etc.... And every time you tried to search for any of those Items in any search engine you got nothing but links to Microsoft Vista? This law only protects Registered trade marks. This kind of redirection from one brand to another only happens when someone at the search engine has told the search engine that RedHat, Suse, Ubuntu = Microsoft.

Google has already stopped doing this in other countries because they were sued and lost.

Re:Wait a minute...!

[Kakurenbo Shogun]

Utah has the Internet? When did that happen... ;)

I think it was a while before they were honored for having the best state government web portal in the US by the Center for Digital Government. Sure, Utah has some beautiful wilderness areas, including numerous well-known national parks like Arches National Park, Bryce Canyon, Zion National Park, part of Grand Canyon National Park, etc.; great rock climbing, skiing, and a lot more stuff like that, but there's plenty of high-tech there too -- perhaps you've heard of Novell, WordPerfect, Iomega, AuthorizeNet...?

Seriously, who's the dope who wasted their moderator points modding the parent post "funny"? Oh yeah, this is Slashdot.

Re:Thanks!

[darthyoshiboy]

I forgot to login when I posted before...

"I much prefer the Mormon position of people being denied adaquate legal healthcare in a commercial health establishment based on particular whims related to imagined magic"

I don't know how you came to be modded insightful, this comment has no factual or historical basis. The "Mormon" church holds no such position. Yes, the politicians in Utah are retards, but I know in the ballpark of 100 practitioners of the LDS faith personally and I have never known a one of them to forgo actual medical treatment in favor of spiritual healing. I am myself a diabetic, and a "Mormon" and though I feel quite as I imagine anyone of faith feels that my faith has aided me with my ailment, I have never refused the aid of medical treatment, or been denied treatment based on my religion. I think that you have us confused with Scientology. Simple fact of the matter is that all the major medical breakthroughs of the University of Utah, the first class children's care at Primary Children's Hospital, and the outstanding Huntsman Cancer Centers aside... Utah has amazing health care, and an amazingly clean living and healthy populace. It's sad really, because one day Utah will get rid of it's horribly misinformed idiocracy and you'll still be a horrible and misinformed idiot.

Re:Damn Straight!

[psykocrime]

And how do you do that if your competition has already bought those search terms from Google (including the trademarked name of your business)?

Ummm, more than one firm can have keyword ads associated with a given keyword. Google for something fairly generic, like say music [google.com] and look at the list of "Sponsored Links" on the right hand side of the page. Additionally note that if you repeat the search numerous times, the list of "Sponsored Links" keeps changing to include ads you didn't see before. So what we actually see is that a LOT of firms can buy ads based on a given keyword, and if more buy than can fit on a single page, they're displayed based on some algorithm Now I don't know what the algorithm is; maybe it's round-robin, maybe it's pseudo-random, who knows? But it doesn't really matter. The point is, it appears that everybody will get their ad displayed eventually. So the idea that your competition can "buy those search terms from Google" and completely lock you out of advertising on those terms, is false.