* Erik Demonstrates Why The EFF Is Wrong About Yahoo Overture And Trademarks

Searching for the EFF? How about the RIAA instead?

Usually I agree with the Electronic Frontier Foundation (http://www.eff.org/) and their advocacy for good technology-related laws and policies. But this time they have misfired. Yahoo Search Marketing (formerly and still commonly known as Overture) (http://searchmarketing.yahoo.com/) recently announced that advertisers would no longer be able to purchase competitors’ trademarks as keywords. Currently, any advertiser on Overture or on Google AdWords (http://adwords.google.com/) can purchase any keyword, even if the keyword is a trademark of their competitor. This allows companies to take unfair advantage and have their advertisements appear when users of search engines are looking for a competitor’s product. For example, Pepsi could buy the “Coke” keyword on Google AdWords, and when users search Google for “Coke,” they’d be shown a Pepsi ad instead.

The EFF makes these arguments (http://www.eff.org/deeplinks/archives/004441.php):

“It’s as if Walgreens decided generic aspirin manufacturers could no longer bid for shelf space next to the more expensive name-brands. Putting the generics near the name-brands promotes generic aspirin sales, of course, but it also helps consumers by saving them the time and effort of hunting around the shelves for cheaper alternatives…. Ironically enough, Yahoo!’s new trademark policy undermines the fundamental purpose of trademarks: to improve consumer access to accurate information about goods and services.”

Nothing is stopping Pepsi from comparing its product to Coke or from purchasing shelf space next to Coke in grocery stores. What we’re talking about here is the line between fair competition and unfair competition. People searching for “Coke” are not looking for “Pepsi” any more than people going to http://www.coke.com/ are looking for http://www.pepsi.com/.

It is easy to be critical of Yahoo if you have never been on the side of defending your own trademarks from such unfair competition. Isn’t it enough that companies register federal trademarks and multiple domain names to protect and defend their trademarks? Must they now purchase all of their trademarks as keywords on all pay-for-performance (PFP or P4P) (including pay-per-click (PPC)) search engines as well?

The real problem is not that Yahoo is (finally) prohibiting companies from purchasing competitors’ trademarks but that Google still allows the practice. Which makes my point easier to demonstrate. Consider the following advertisement for The Recording Industry Association of America (RIAA) (http://www.riaa.com/).

Support artists’ rights.
Protect IP rights and 1st Amendment
rights of musicians worldwide.
www.riaa.com

Sounds like a good cause. In fact, it sounds a lot like the sort of thing that the EFF would say about itself. Now imagine that you’re a user at Google searching for the Electronic Frontier Foundation’s website, so you enter “EFF” in Google (http://www.google.com/search?q=eff) and see this add:

Go ahead, try it.

If you were the EFF, you’d think that this was unfair competition on the part of the RIAA, wouldn’t you? People searching for “Coke” are not looking for “Pepsi.” People searching for “EFF” are not looking for “RIAA.” Emphasis on searching.

[EFF and RIAA are registered trademarks of their respective owners. The EFF and the RIAA are not associated with the author, this weblog, or the author’s law firm.]

See also:

Update: In case it’s not obvious, the RIAA did not create the above ad, I did. To make a point.