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The Courts Government The Internet News

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 writerjosh (862522) * on Monday May 05, 2008 @12:18PM (#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 Beryllium Sphere(tm) (193358) on Monday May 05, 2008 @12:27PM (#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.
  • Bad precedent (Score:3, Insightful)

    by shmlco (594907) on Monday May 05, 2008 @01:05PM (#23303044) Homepage
    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...
  • I don't think so (Score:5, Insightful)

    by wsanders (114993) on Monday May 05, 2008 @01:09PM (#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.
  • by JasonKChapman (842766) on Monday May 05, 2008 @01:14PM (#23303154) Homepage

    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
  • by Uncle Focker (1277658) on Monday May 05, 2008 @01:15PM (#23303170)

    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 Pharmboy (216950) on Monday May 05, 2008 @01:23PM (#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.
  • Re:Bad precedent (Score:5, Insightful)

    by Tanktalus (794810) on Monday May 05, 2008 @01:29PM (#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 Anonymous Coward on Monday May 05, 2008 @01:34PM (#23303420)
    But complicated ideas, like sentences, can be broken down into smaller ones. This is not coincidental. The sentence is supposed to convey the idea, after all.
  • by Mr. Underbridge (666784) on Monday May 05, 2008 @01:53PM (#23303654)

    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 changing their name to Altria or a baby Bell changing its name to Verizon. Historically, companies have used existing names or words to denote their company, and trademark law has specific protections for that. The whole point is to provide protection to companies who use a specific name in a certain tradespace without letting them "own" the name.

  • by Anonymous Coward on Monday May 05, 2008 @02:34PM (#23303972)

    Sometimes, due either to an attempt to communicate a complicated idea or the desire to expand on a simple idea ad nauseum for novelty purposes, a sentence will carry on for extended lines and, if properly authored by an individual using simple words and eschewing obfuscation, it will not necessarily be difficult for the general public to understand, even without the assistance of a lawyer, translator, or advanced Communications degree.
    In other words: Properly worded, complex ideas can be summed up clearly and concisely, without the need for pedantry.

    Besides, keeping it concise doesn't allow nearly as many opportunities for errors in punctuation. As you may know, misused, or just flatly missed punctuation, can make a pedant look like a fool.

    I agree with GP: KISS (Keep It Simple, Stupid.)
  • Re:Bad precedent (Score:4, Insightful)

    by Red Flayer (890720) on Monday May 05, 2008 @02:40PM (#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.
  • by Jesus_666 (702802) on Monday May 05, 2008 @03:37PM (#23304602)
    I think a whitelist would be the correct approach here - most of the BMP and certain mathematical symbols would be good candidates. And they would certainly be useful.
  • by zippthorne (748122) on Monday May 05, 2008 @04:21PM (#23305092) Journal
    Coke is weird though. I've tried to order "Cola" at places where I'm unsure which one they serve (and on the off chance I might luck out and they carry RC for some reason...) and I get funny looks everywhere.

    It's gotten to the point that using the correct term does little more than make you look (and feel) like a pedantic jerk.

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