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US Court Orders Company to Use Negative Keywords 177

Posted by ScuttleMonkey
from the negative-ghostrider-the-pattern-is-full dept.
A US court has ordered a firm to utilize negative adwords in their internet advertising. "Orion Bancorp took Orion Residential Finance (ORF) to court in Florida over ORF's use of the word 'Orion' in relation to financial services and products, arguing that it had used the term since 2002 and had held a trade mark for it since then. [...] The judge in the case went further, though, restraining ORF from 'purchasing or using any form of advertising including keywords or "adwords" in internet advertising containing any mark incorporating Plaintiff's Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term "Orion" as negative keywords or negative adwords in any internet advertising purchased or used.'"
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US Court Orders Company to Use Negative Keywords

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  • by r_jensen11 (598210) on Monday May 05, 2008 @01:14PM (#23302412)
    Orion's overrated anyway. They should change their name to BoÃtes.
  • by alta (1263) on Monday May 05, 2008 @01:15PM (#23302422) Homepage Journal

    The judge in the case went further, though, restraining ORF from 'purchasing or using any form of advertising including keywords or 'adwords' in internet advertising containing any mark incorporating Plaintiff's Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term 'Orion' as negative keywords or negative adwords in any internet advertising purchased or used.
    Do you realize how long this sentence is? Fine for court documents, but not for a casual news site.
  • by writerjosh (862522) * on Monday May 05, 2008 @01:18PM (#23302454) Homepage
    This is unfortunate. The courts should have no jurisdiction over someone's stupidity. Using the name "Orion" in your company name is just asking for trouble. It's such a popular and recognizable term. OB and ORF shouldn't be surprised when someone steps on their toes once in awhile. OB acts like it invented the term despite the fact that it's been around for thousands of years.

    And then with the courts stepping in and forcing ORF to not use the term in their advertising is playing favorites to OB. I can only imagine that this decision puts a serious dent in ORF's bottom line. If ORF was calling themselves "Kleenex" or some other brand name, that would be understandable, but "Orion?" Come on. OB shouldn't be crying foul when they should've known there would be confusion with the name "Orion." They need to grow up and play ball the old fashion way: may the best man win.
    • by JustOK (667959) on Monday May 05, 2008 @01:23PM (#23302530) Journal
      Plus, everyone knows the Orion is a satire/parody website.
    • Re: (Score:3, Funny)

      by sm62704 (957197)
      The bank one should change their name to "Orien's Moneybelt".
    • by Beryllium Sphere(tm) (193358) on Monday May 05, 2008 @01:27PM (#23302574) Homepage Journal
      "Orion" isn't the first term you'd use to describe a financial services company, though, and as soon as you use a non-descriptive word to identify your business you're in the realm of trademark law. Trademark law looks for risk of confusion, which is imaginable in this case. They shouldn't have been able to sue a business called "Orion candy", for example.

      Nolo Press has a good book about trademarks, and one of the examples they give of a common word turning into a protectable trademark is "Diesel: a bookstore". "Diesel" is a pretty common word but uncommon when applies to bookstores.
      • If you like Firefly try Crimson Dark [davidcsimon.com]

        Thank you for the link. I just finished reading the prologue, and I like! I like! Now, if only I didn't have to work, so I could catch up on the year and a half of archives.
    • If pressed to think of a non-constellation use of Orion, I think of Orion Pictures [wikipedia.org]

      These banks prolly ought not mess with movie folks over things like trademarks and copyrights...

      • Re: (Score:3, Insightful)

        by JasonKChapman (842766)

        Except that Orion Pictures doesn't sell financial services. ORF does, which is why the complaint carried weight. The two companies have overlapping areas of business interest. It's not just the use of a trademarked term, it's use of it in such a way that it could cause confusion for potential customers and cost the plaintiff money.

        over ORF's use of the word 'Orion' in relation to financial services and products
        • Re: (Score:2, Interesting)

          by DarthJohn (1160097)
          similar to how Linus owns the trademark Linux when applied to software, and somebody else owns the trademark Linux when applied to laundry detergent [slashdot.org].

          Different domain, different trademark.

          Heh... that summary says there are over 200 different trademarks for the term Linux.
        • by afidel (530433)
          Actually knowing the way Hollywood works I would bet Orion Pictures does in fact have a financing wing which is part or their shell game to hide profits.
      • Re: (Score:3, Insightful)

        by Uncle Focker (1277658)

        If pressed to think of a non-constellation use of Orion, I think of Orion Pictures

        Those are two different industries and hence one wouldn't be confusing Orion Bankcorp with Orion Pictures. So that situation isn't really analogous to two financial companies both using Orion in their name.

        These banks prolly ought not mess with movie folks over things like trademarks and copyrights...

        Even if Orion Pictures was still around, which it's not, they wouldn't be able to win a suit against either Orion Bankcorp or Orion Residential Finance.
        You might want to do some reading on trademark law before you post next time.

        • by Sancho (17056) *

          Even if Orion Pictures was still around, which it's not
          Offtopic, but amusing:
          The funniest bit of commentary from Weird Al's UHF is at the very beginning, where he sings along with the Orion logo music, "Orion...Orion...is bankrupt now!"
    • by thebdj (768618) on Monday May 05, 2008 @01:58PM (#23302934) Journal

      If ORF was calling themselves "Kleenex" or some other brand name, that would be understandable
      Actually, thanks to a little something known as genericized trademark [wikipedia.org], they actually wouldn't be in too much trouble if their name were Kleenex. It could be easily argued that Kleenex is genericized since the word is almost synonymous with tissues now. Trademark law works quite interesting in that manner. If you do not properly defend your mark and it becomes "generic" then your rights to the mark could be lost. (Now, if only we adopted a similar measure with Patents but that is a different story.)
    • Bad precedent (Score:3, Insightful)

      by shmlco (594907)
      I think this sets a bad precedent. The internet is a global mechanism, and I think this has the potential to start a land grab for "confusing" names. Just as an example, how many "Golden Dragon" Chinese restaraunts are there in the entire US? Or Golden Pheasants? Or Red Dragons? Or all three in the same city? Who sues to get a lock on "Golden" and who ensures that no one else anywhere can use "Dragon"?

      And don't even get me started on AA Locksmiths, AAA Locksmiths, and AAAA Locksmiths...
      • Re:Bad precedent (Score:5, Insightful)

        by Tanktalus (794810) on Monday May 05, 2008 @02:29PM (#23303346) Journal

        I doubt this sets any precedent. This is not new or novel or even unexpected. The only news for nerds here is the judge explicitly calling out search advertising. Otherwise, it's entirely predictable (the way laws and courts should be).

        The Orions had both overlapping goods/services AND they had overlapping sales regions.

        Golden Dragon restaurant in downtown L.A. does not compete with Golden Dragon in Manhattan. There is no confusion arising from the re-use of that name. Now, if there were a Golden Dragon *chain* restaurant, the rules may change. But not much. First come, first serve, as far as that trade mark and the area it is used in. You can't form a chain called "Golden Dragon restaurants" and try to push that Manhattan restaurant out (but you can try to buy it).

        • by pjt33 (739471)

          You can't form a chain called "Golden Dragon restaurants" and try to push that Manhattan restaurant out (but you can try to buy it).
          Unless you're McDonald's.
      • To avoid confusion, we have referred to our local Chinese takeway as "the Golden Whatsit" for many years. They call us "Mr and Mrs No-Prawn". It myst work, we know we are us, and they know they are them!
      • Re:Bad precedent (Score:4, Insightful)

        by Red Flayer (890720) on Monday May 05, 2008 @03:40PM (#23304030) Journal

        Who sues to get a lock on "Golden" and who ensures that no one else anywhere can use "Dragon"?
        No one. Trademarks are also tied to their markets; there is no trademark infringement when markets do not collide.

        Hence, Golden Dragon in Decatur IL has no standing to sue Golden Dragon in Kissimee FL for trademark infringement.

        Once case recently illustrating this was Trump's trademark of "You're Fired" in classes 9 and 16 (I believe; not sure if there were other classes also) nationwide; there was a pottery shop of the same name in Chicago that sold goods in classes 9 and 16 prior to Trump's trademark application. They ended up settling for an undisclosed amount, but basically the pottery shop owner already had the trademark (though unregistered) in Chicago, so Trump was out of luck.

        To get back to the Golden Dragon example, someone trying to register "Golden Dragon" nationwide (say, if they were starting a chain) would need to negotiate with restaurants of that name in order to supplant their existing trademark.
    • Re: (Score:3, Insightful)

      OB and ORF shouldn't be surprised when someone steps on their toes once in awhile. OB acts like it invented the term despite the fact that it's been around for thousands of years.

      The trademark is obviously restricted to banking and finance. It's not like they'd get the same judgment against "Orion Tiddlywink Company'. They don't have to invent the name; that is a rather modern contrivance in which companies change their name to make up a vaguely positive sounding fake name, like a cancer merchant changi

    • It was a default judgement. That's what happens when you don't show up to defend yourself, so the court assumes everything remotely plausible the other guy says must be true. Baaaaad things happen to you when that happens. Just ask Spamhaus.

      Here it looks like they showed up in the penalty phase, but by that point they'd already 'conceded' all the main points -- like that Orion is protectable, and that using it in keyword advertising is a trademark infringement. Both of these are points of law, that the
  • by Zeinfeld (263942) on Monday May 05, 2008 @01:20PM (#23302480) Homepage
    There was a pretty clear claim for trademark infringement here. The court very reasonably found that ORF was trading on Orion's reputation.

    Having made that finding the court is quite reasonably penalizing ORF. It is quite reasonable for an injunction to penalize ORF after they clearly took advantage of Orion's reputation.

    And any company that does not show up in court when served with papers is likely to find that they end up saddled with onerous terms in any case.

    • Re: (Score:3, Interesting)

      by quarterbuck (1268694)
      It is true that ORF did not turn up in court. It is also true that there is a reasonable trademarks dispute with two firms that have similar names and sell similar products.
      That said, the idea of negative adwords is a bad idea. If there is a valid trademark dispute, ORF should be forced to pay restitution to Orion or forced to change the name. But. now due to the negative keywords ruling, even if ORF changes its name to Uranus corporation, they still are bound not to advertise on a page where user search
      • This is similar to saying that in a newspaper where there is a news article about Netscape, Microsoft should not be allowed to advertise just because in the past Microsoft played dirty with Netscape.
        I thought that was more or less the definition of punishment. You can't do X now becuase in the past you did something wrong. Not trying to be a smart a$$ but appearntly someone (teh court) thinks they did something wrong and need to be punished.
      • But. now due to the negative keywords ruling, even if ORF changes its name to Uranus corporation, they still are bound not to advertise on a page where user searches for Orion.

        I thought Uranus is the trademark of Goatse corporation. It is not?

    • by Pharmboy (216950) on Monday May 05, 2008 @02:23PM (#23303270) Journal
      Except that "fair use" of a trademark applies, as in, you have the right to use a trademark when comparing your product to another. Pepsi can use the trademarked term "Coke" when comparing the taste of their product to Coke, all perfectly legal. Even though the names are not similar, under this judge's (flawed) interpretation of the law, Pepsi couldn't use "compare taste of coke" or "coke vs pepsi" in their advertising tags, which would normally be considered a fair use of the term.

      If the one company has the term trademarked, then yes, the other must tread lightly when using the term. As to using the negative in the ad terms, that is just insanely stupid. This will only serve to provide LESS comparisons of competition, instead of doing what the law was designed to do: clear up any confusion in the marketplace.
      • So if I created a brown-colored soda and called it "Coke II" it would be fair use?

        I think not.

        This is a case where two financial institutions have extremely similar names and overlapping business territory, and the more established one is suing the newer one to prevent them from using the name. It is a textbook application of trademark law, and it doesn't matter at all if the term is a registered trademark as long as the plaintiff can show that they began using the name in the marketplace first.

        If the secon
      • by Chris Burke (6130)
        Pepsi can use the trademarked term "Coke" when comparing the taste of their product to Coke, all perfectly legal.

        Because, as I understand it, they have permission from Coke to do so. Which makes a lot of sense when you consider that the very act of saying "Pepsi is better than Coke" or vice versa is a way of reinforcing their duopoly where those are the only two options.

        On the other hand, notice how most advertisements will say that their product is 10% better than "the other leading brand".

        And when they
        • Re: (Score:3, Interesting)

          by rudy_wayne (414635)

          "Because, as I understand it, they have permission from Coke to do so."

          Your understanding is wrong. It's perfectly legal for Pepsi to say "we're better than Coke". No permission from Coke is needed. It would be condsider fair use.

          On the other hand, notice how most advertisements will say that their product is 10% better than "the other leading brand"

          There's a reason for this. It's called marketing bullshit. If you say "we are 10% better than XYZ" someone can do their own tests to show that you are ly

          • Well, you can't just say "we're better than Coke," you have to say "In a independent taste test, 4/5 applicants preferred the taste of Pepsi to Coke" because that's very factual. You can't just say "coke sucks" or anything like that or you'll get sued for libel and/or other things for attacking their brand.
    • by CowboyBob500 (580695) on Monday May 05, 2008 @05:02PM (#23304898) Homepage
      No, its perfectly unreasonable. Reasonable would be to let both parties trade as they are. Both companies have different names (Orion Bancorp vs Orion Residential Finance), just that one word within those names happens to be the same. It's like Blue Banking Corporation claiming ownership of the word Blue over Blue Finance LLC. Ridiculous.

      Recently I happened to release an album on iTunes music store. It takes 28 days to get put up there. Unfortunately another band with the same name released their album the day after mine, though they couldn't have known in advance of the name clash. Both albums are in the same genre. However, after a couple of e-mails back and forth we resolved the thing amicably by deciding that both bands would continue to use the same name, even though technically I could have forced them to change their name as I was there one day earlier.

      Legal doesn't necessarily mean reasonable
      Being right doesn't necessarily mean reasonable

      Sometimes people need to take a step back and realise that.
  • by Bovius (1243040) on Monday May 05, 2008 @01:22PM (#23302514)
    When I first read the post, for some reason I thought "negative keywords" meant they had to advertise under keywords that people wouldn't want, like "really bad financial service" or "shady loan company" or "housing lemons".
  • by Alzheimers (467217) on Monday May 05, 2008 @01:23PM (#23302532)
    1) Company must now register and pay for the keywords "Dummy", "Poopiehead", "Fartsniffer", and "Boogerbrains"

    or

    2) Company must now register keywords that, when combined with their intended keywords, nullify each other out, like Semantic anti-matter.

    or

    3) Company may only use keywords that have a value less than zero.
  • I smell a Loop hole (Score:2, Interesting)

    by techpawn (969834)
    "Negative Keywords" is a Google term. Excluded Keywords the Yahoo term. The judge specifically said "negative keywords or negative adwords". So does this reach across to OTHER search engines? I would hope so and that Google has a case on their hands if they had "Negative keywords" trademarked...
    • by elb (49623) * on Monday May 05, 2008 @01:57PM (#23302926)
      Forget RTFA, did you even read the original post?

      "and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term 'Orion' as negative keywords or negative adwords in any internet advertising purchased or used".


      the judge specifically said "internet advertising". and s/he used the phrase "keywords, adwords, or the like". to suggest that the ruling applies only to google adwords is flagrant trolling. i don't know how anyone could possibly interpret the statement in the ruling as being constrained to google.

      sheesh. how this got modded "interesting" is beyond me.
      • by techpawn (969834)
        I'm not trolling. Depending on the lawyer you get they will argue semantics of a ruling to squeak out any loophole they can. My argument here is that the judgment was for advertising to focus on a Google specific term. There where other nontechnical ways to word this judgment but they went for "Negative Keywords" specifically.
        Yahoo does NOT use "negative Keywords" they use "Excluded Keywords". That may be a legal back door used in the appeal process.
  • Sounds like the judge was completely clueless about the technologies in this case. I'm willing to be this will be appealed shortly, and the chances of it being overturned are probably pretty good.
  • If Orion is Greek Myth in origin, isn't it public domain?

    What next, Onion Bankcorp, because that is how I read the article the first time I read it. :)
    • I don't think so (Score:5, Insightful)

      by wsanders (114993) on Monday May 05, 2008 @02:09PM (#23303080) Homepage
      I mean, "apple" and "America" are pretty generic terms, but I suspect if I started a company called "Apple Microcomputers" and "Mortgage Bank of America" I'd get some phone calls real soon, and they wouldn't be from customers.

      Ah well, they should just change their name to "YA Bankrupt Fly-By-Night Mortgage Broker" and be done with it.
    • Re: (Score:3, Interesting)

      by mea37 (1201159)
      You're thinking of copyright concepts. This is a trademark issue. Trademark has nothing to do with being creative or original -- it only has to do with distinctive identification of goods and/or services.

      In short, there's no reason Orion couldn't be a protected mark. The court found that it is, and I see no particular reason to think they'd get this wrong. That being the case, telling them they can't advertise under that mark is pretty much normal operation of trademarks.

      Requiring negative adwords seems
  • I am curious. There are two Hershey companies. One sells chocolate the other ice cream. Oh, but the first's products are often used in ice cream as well.

    I believe the ice cream company is actually the older of the two. So they should really take their court before this judge. They could be granted to actually force the famous Hershey chocolate to buy negative keywords.

    ***

    The real question in this case, is whether the two companies founded independently or not. (ie: Both founded in separate regions and at
  • Trademark infringement? Sure; same field, similar names, could be confusing. They should be required to change their name, or something.

    But why should they be barred from using a competitor's name in their advertising? A federal court has found that to be perfectly legal [news.com], so this is an unusal punishment.

  • It sounds like this ruling makes it illegal for the company to run advertisements on any web advertiser which doesn't incorporate the concept of a "negative" keyword. So now the space of advertisers available to the company is limited by a technical detail. This seems wrong.
  • The negative keywords will combine with the positive keywords and KABLAM!!!!! Goddamn hippies messing with forces of which they know nothing!
  • by Mawginty (882393)

    The reason this injunction is so bad is that it explicitly forbids comparative advertising. You know how in the grocery store they shelve the Campbell's soup next to the store's off-brand label? That's similar to buying the trademarks of your competitors as keywords. That way, both products come up in the search results and the consumer gets to investigate both and determine which she would like to buy. That benefits the market by giving consumers more information, exactly the kind of thing that trademar

  • I read through the postings here and still cannot figure out what a negative keyword might be...
    • by Tacvek (948259)
      A negative keyword would be a keyword that if it appears would prevent the advertisement from appearing, regardless of the presence or absence of the normal keywords.
  • If the 2 companies were splitting up a financial pie that didn't involve intruding into each other's customer space, they could have easily worked out an agreement, maybe equal advertising space on each other's sites, shared advertising costs, thus profiting both companies and strengthening each other's brand name. Instead one company benefits at the expense of the other, with the side effect of becoming notorious for the setting of bad legal precedence.

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