Geico’s trademark infringement suit against Google and Yahoo has cleared a legal hurdle, and will proceed to trial, barring settlement.
Interesting commentary on the basis of the case to be had over at Techdirt:
As long as the ads in question don’t try to trick users into believing that they are Geico, there’s no trademark infringement. It’s no different than trying to get yourself on the same super market shelf as a more popular brand. You want to be in the same place when someone is looking for your competitor. If anything, Geico should be focusing on specific ads that confuse users into believing that the ads are for Geico instead of a competitor. Speaking of which, Google and Overture should have nothing to do with this case. They’re not the ones who created the ads, but are simply the vehicle for delivering them. If Geico has a problem with the ads, they should be suing the advertiser in question.
The unpublicized Aug. 25 decision by Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia delivered a blow to the two Internet search giants in their efforts to defend ad sales of trademarks as fair use. It could also ultimately threaten their livelihood: Google and Overture make money by selling ads linked to keyword-triggered search results, and many commercially driven searches are tied to trademarked brands such as Geico or Nike.
Judge Brinkema denied Google and Overture’s motion to dismiss six charges brought by Geico, which alleged that the search companies’ use of its name to trigger search-related advertisements was trademark infringement, unfair competition and dilution of its marks…
I think the TechDirt guys are missing the point here and the comp. is off. First off, you can’t compare search engine ads to the supermarkets. Completely different ball of wax. When have you ever seen in a supermarket a product pitch or packaging for detergent stating “Get the same thing as Tide for 30% less!”? You haven’t because Tide would never pay placement fees if the supermarket allowed that to happen. But in Google Tide would have no choice. It’s either buy those slots or let someone else advertise directly against your name in a place where your customers will be. I think its a subtle difference but an important one.
Alex: Go to a Walgreens. Go to the pharmacy section. Look at a package of generic walgreeens brand medication. Note the “Compare to active ingredient in X” labelling on the package.