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.'"

Damn Straight!

Because God knows that if I'm searching for "New Cars" I damn sure don't want to see any advertisements about car dealerships, finance companies, or anythign like that. Hell I don't even want results returning cars stuff. Why cant they just give me my sex in a new car porn and be done with it?!

Stupid advertisers.

Seriously, wtf is wrong with this picture?

Re:Damn Straight!

Seriously, wtf is wrong with this picture?

Umm...Utah?

Re:Damn Straight!

I think the idea is that if your searching for "Sam's Used Cars" you get get a bunch of links going to "Bill's Car and Plumbing Shop" before you get what you were looking for.

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

By the sound of it, it doesn't actually ban keyword advertising, it just limits a bit.

Returning Bob's Hardware in a search for 'Dan's Hardware' based off from the word 'hardware' might be ok. 'hardware' is a rather generic word, after all. Walmart buying a link based off of 'Target', 'Sears', or 'K-Mart' would not be.

Still, I could easily see this law being struck down by a judge with a wide interpretation of the 1st, as long as no actual misrepresentation is made.

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

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:Thanks!

Wait...
They do have horns though, right?

On a more serious note, is this even enforceable? I mean my server is not in Utah... That or is Google going to simply de-list Utah and its businesses?
-nB

Re:Damn Straight!

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.

Re:Damn Straight!

Thank you for the links, those were an interesting read.

I still think that these legislation is not wise.

First, I do not think it is the job of the state to protect the success or effectiveness of a private entity's pr-campaign.

Second, this type of legislation would put a burden on the sellers of advertisement space. Would they have to verify the legal owner of each possible trademark that a keyword could refer to?

The link uses the example 'pontiac', and how it should point to General Motors website. What about 'pontac', 'pontiac dealership' or 'pontiac repairs'? It quickly becomes very difficult to draw the line on where the rights of a trademark owner end, and free competition for eyeballs begins.

How to comply

Suggestion to Google on how to comply with these laws: add the ability for trademark owners to disable targetted advertising to their trademark, as the law requires. However, do it by completely removing that trademark from the search index. Anyone searching for that trademark should get a blank page. We'll see how many companies really make use of this feature. If you don't want to play fair, you should take your toys and go home, I say.

Re:Damn Straight!

I think the article was talking about key words that are trademarked being bought by a company that does not own the trademarks. Your example of a car dealership would not apply because a Toyota dealer sells Toyotas, etc. I don't think anyone has a problem with that. But, what if you ran a small grocery store that delivers online in your neighborhood and Walmart moved in and bought up all of the searches for your store on Google. Your competitor is really stealing your brand recognition that you spent many years building. Is this fair?

No, you miss the point

Because God knows that if I'm searching for "New Cars" I damn sure don't want to see any advertisements about car dealerships, finance companies, or anythign like that.

No, that isn't the issue at all. You have apparently not bothered to read TFA (I know, I must be new here). Keyword advertising is 100% legal after this bill; anyone and everyone can advertise using keywords like "New Cars". No problem there.

The issue the Utah legislators are against is (the following example is fictitious) Sony buying keyword advertisements for the "XBOX" keyword - in hopes of getting them to buy PS3s instead. The idea behind the law is that, in this example, Microsoft own the XBOX trademark, and by Sony buying ads for "XBOX", they are 'benefiting from another person's trademark'. Or something like that. To be more specific, it might be the case the Sony pay more, and people typing "XBOX" see ads for Sony, and not Microsoft. The legislators see that as "hijacking a trademark".

Now, this is an interesting issue. In essence, this is a case of one entity making use of anothers' trademark for profit. Which does seem a little 'off', at least if you value trademarks (I do, and I disvalue copyright and patents, at least in their current incarnation in the US). However, as pointed out in the past, the real issue isn't what is 'fair', but what is possible. Implementing this law is a lesson in futility. In other words, Utah don't get it. But they are not the complete morons implied by most people's reaction to the Slashdot title for this story.

Re:Damn Straight!

What of the idea to have "Truth in Online Advertising?" So, for example, if I enter "Metal Gear Solid" into a google search, I don't get sent to www.DonkeyShow.com? There should be SOME relevancy between a keyword and the site's content...

Great...

Because passing a stupid law like this in Utah will actually have any real effect on the use of keyword advertising.

The only real effect it will have is making things harder for advertising companies, by forcing them to filter out the dolts in Utah before serving up an ad.

This is nothing more than some 2-bit politician trying to make a name for himself, and won't do any good whatsoever for any of the citizens that were responsible for putting his sorry ass in office in the first place.

Three little words.

Utah. Politics. Internet.

ZZZzzzzz......

Dumb Idea, Even Dumber Execution

This ridiculous combination of horrendous policy, tortured understanding of technology, and regulatory sophistication boggles the mind. The best part is, rather than attack keyword advertising directly, the law creates an entirely new form of IP, the 'electronic registration mark':

Specifically, the law creates a new intellectual property right called an "electronic registration mark," defined as a "word, term, or name that represents a business, goods, or a service." . . . Once registered, an infringement occurs if another person "uses an electronic registration mark to cause the delivery or display of an advertisement for a business, goods, or a service: (i) of the same class, as defined in Section 70-3a-308, other than the business, goods, or service of the registrant of the electronic registration mark; or (ii) if that advertisement is likely to cause confusion between the business, goods, or service of the registrant of the electronic registration mark and the business, goods, or service advertised."

Luckily, the system is so loosely defined and, as TFA points out, directly in conflict with existing federal trademark law that it can't possibly stand. Apparently state legislators in Utah are available on the cheap, because I can't imagine the anti-keyword lobby has deep pockets. Maybe I can get some of this money, if only there were some way to cheaply deliver ads to this small group and only the small group...

I'm so torn

I hate politicians, but I hate advertisers, too. Ack! (head explodes)

Google can cope easily

They have already proven they can handle themselves with difficult governments.

First Google China edition
Now Google Utah edition.

Re:Google can cope easily

Not fair comparing the two:

Google China: Firewall for 1.2e9 people
Google Utah: Free adblock for about 5 people?

Quick!

So, who will be first to purchase AdWords for "Dan Eastman?"

I just googled him and got no advertisements, so looks like he's even cheaper than the average politician!

There is a reason...

Utah is one of the places used to simulate Mars landings.

My two explanations

This is so obviously wrong the reasons it is wrong may not be obvious, so here is my attempt at three concise explanations:

1. Old-fashioned thinking says that Google is the new newspaper. This is wrong. It's the new concierge. If you go to a hotel and ask the concierge for reservations to Morton's and he says, "ah, but here is a better steakhouse that my buddy runs" -- can you imagine that being illegal?
2. Old-fashioned thinking says that the world is hierarchical. That's just post-Aristotle Western thinking. According to this new Utah law, if you want to find competitors to Jiffy Lube, you must first identify the superclass or super superclass (species and genus, respectively, in Aristotalean terms) and type that into the search engine. Typing in a specimen (i.e. Jiffy Lube) to find siblings is called associative lookup in computer science parlance. I'm wondering when the law is coming that bans content addressable memory.
3. Old-fashioned thinking says that there is a bright line between paid and unpaid search engine placement. Even if an advertiser is not paying for Google AdWords, you know they're paying for search engine optimization -- just not directly to Google. Will SEO be the next thing made illegal, since it is a form of advertising that has no explicit "this message paid for by..." message? And if not, do we prefer SEO (i.e. Google spam pages) to AdWords?

Re:My two explanations

Then someone should tell that to the people who've been printing phone books for the last few decades. Or have you never actually opened up a nice thick paper phone book with its orgy of keyword based advertisements?

Some types of keyword ads should be stopped

There's keyword advertising, and there's keyword advertising. I don't have an issue with google showing sponsored ads off to the side... but not embedded within the results.

But the greatest scum of all keyword adverts is in the vein of 'gator' et al, that rewrote webpages and literally embedded ads for competitors right within a businesses own website's content - a least from the end user experience perspective.

The new 'gator' is that 'intellitext' crap, and frankly its just as bad, perhaps worse because its coming from the website instead of being the result of malware I can remove. (Sure I can generally block intellitext crap with FF using adblock with some effort, but that's beside the point.)

I hate playing 'dodge the link with my mouse' with 'legitimate' website content, blogs, and so forth. I would support a law that banned that sort of page rewriting to embed advertising links.

I've never met a user that found those ads anything but annoying. (Especially on older systems where running the javascript and building the popup would take several seconds, like my old G3 ibook, a delay triggered by simply letting the mouse glide over a link by mistake... not click on it, just drift over it)

Re:Follow the money to here...

Which campaign donor paid for this, or which Mormon edict is behind it? It's obviously one or the other.

I think you might be onto something here.. It looks like follow the money. Now if I can find some data on the new registery mentioned in the article and who profits...

Snipped from the article....

Owners of eligible words can register the terms in a new registry by paying a nominal fee.

Re:bullshit

Advertising a competing product when potential customers search for a trademark is exactly what trademarks were supposed to accomplish.

How the heck did this get modded informative? Trademarks were established so that the time and effort a company spends establishing its brand won't get hijacked by someone offering a substandard product with the same name. How useful would it be if you went to the store to get "Aspirin", and there were 10 different versions with the same name, but half of them were weaker and less effective products? Yes, you can always read the ingredients but look at a can of generic corn vs., say, Del Monte. I've found through experience that the Del Monte version is always crisper and sweeter (meaning it was probably canned more quickly from fresher corn) than the generic version. However, both labels will read "corn, water, salt". If the generic maker was able to copy Del Monte's tradename, buying canned corn would be a crapshoot.

Now, you may say "canned corn, big deal", but what if the "Michelin" tires you paid for were actually retreads or substandard tires? Not only do you get ripped off by paying the premium price, but I don't really want to risk a blowout at 60 mph.

There is a ton of marketing research - from both ad firms and university professors - that shows that brand names are useful to consumers. The brand provides information and assurance about a certain level of consistency and quality to the consumer. For example, having tried Hunt's, Aylmer, and generic ketchup, I'll stick to Heinz. I have tried some generic products (e.g. hot dogs - for some reason I have food on the brain tonight!) that I find perfectly acceptable to their brand name versions. Here's another - I take a generic version of metformin to help control my diabetes; it's less than half the price of the brand name version, and it works perfectly well. But I've also tried many generic products (rough toilet paper, inferior laundry detergent, lousy frozen food to name a few) that were completely disappointing.

But those are inexpensive products where the cost of testing them is a few bucks. When I upgrade to an HDTV, it's going to be a Toshiba or Sony or Samsung or LG; it's not going to be an Avanti. When I spend $2,000, I want the assurance of a brand name (quality, warranty, likelihood the maker will be around in five years).

That's what brand names are supposed to accomplish, not to make it easier for competitors. Sheesh!