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Keyen Farrell Countersues Jeremy Schoemaker, Claiming Defamation
Back in April, Jeremy “Shoemoney” Schoemaker filed suit against Google AdWords employee Keyen Farrell, saying that Farrell had violated his trademark on “Shoemoney” by using it Google ads. Today, Farrell is firing back with a suit saying that Shoemaker has defamed him.
From the release put out on behalf of Farrell:
If you searched the internet for the name “Keyen Farrell” prior to April 7th , a dozen listings would have appeared and you would have learned about Farrell’s high school track career, a college business and his employment at Google Inc.. However, as of April 8, 2009, there were over 65,000 listings, virtually all of them negative.
In one of the most widely covered stories on the internet, Keyen Farrell (“Farrell”), was sued by Shoemoney Media Group, Inc. (“Shoemoney”). Shoemoney charged Farrell with infringing on its trademarks by using his position at Google to circumvent internal trademark protection protocols for personal gain. The President and Chief Executive Officer of Shoemoney, Jeremy Schoemaker of Lincoln, Nebraska, later through statements on various websites branded Farrell a “corrupt employee”. Google thoroughly investigated Schoemaker’s allegations and found them to be without merit. (Google’s full statement can be found at http://searchengineland.com/google-clears-employee-in-shoemoney-case-19481)
Today lawyers for Farrell filed a claim against Mr. Schoemaker in federal district court in Nebraska seeking damages for Mr. Schoemaker’s defamatory statements made outside the lawsuit. The suit seeks damages for both defamation of Farrell’s reputation and tortious interference.
A full copy of the filings and supporting documents can be found at http://www.scribd.com/doc/16228469/Keyen-Farrell-Sues-Jeremy-Schoemaker
Actually, a search for “keyen farrell” brings up 2,180 matches, right now. If you lose the quotes, then you get 162,000 matches — but those will be pages that might not have both words on them (such as here), so not necessarily about Keyen Farrell. Most of the first page is about the case, though an article about Farrell talking about his internet marketing success still ranks tops, as does his LinkedIn profile.
Still, the point is clear — Farrell’s not happy that the suit has caused him to perhaps take a reputation plunge for those searching for him by name. Moreover, he alleges that Schoemaker defamed him by calling him a “corrupt employee” in a quote from one of our early stories on the case, Google Employee Alleged To Have Bypassed AdWords Trademark Policy For Own Benefit:
And I do not honestly think nor do we have any evidence that Google was involved or had knowledge of this corrupt employee
I bolded the key part. Google did investigate whether its trademark system had been circumvented by any of its employees and found that it had not, which resulted in the follow-up article I wrote, Google Finds No Data Misuse In Shoemoney Trademark Case. This is cited in both the press release and his defamation case. Google had told me:
The privacy and security of our users and advertisers’ account information is a top priority for us, and our internal policies prohibit any use of non-public advertiser data for personal gain. After a thorough investigation, we found no indication that any employee purposefully tampered with or circumvented any of those policies, processes or procedures, including our trademark filtering process. Due to an unrelated human error, however, some ads with the “Shoemoney” trademark in the text were unintentionally allowed to run. The error has since been corrected, and the ads ran only for a short time.
Again, I’ve bolded the key portion. Originally, I had a headline on the article saying that Google had cleared Farrell. They quickly called and asked that it be changed — that they weren’t clearing Farrell in particular but rather asserting that none of their policies had overtly been circumvented or tampered with by any employee. They wanted to stress there was no “data misuse,” which I ended up altering the headline to reflect.
It’s possible that Farrell might be relying too heavily on Google’s statement for his defamation claim, but we’ll see. Far more interesting is that finally, his lawyers have developed up a better explanation of how he ended up with ads targeting the Shoemoney term.
Soon after the case first came to light, I noted how weak Farrell’s explanations were about what happened. I had to concoct my own explanations on how he might have innocently ended up with trademark terms in his ad copy:
There is one exception. This is dynamic keyword insertion, or DKI, where Google will automatically insert any targeted term into the text of an ad….
Perhaps I’m handing Farrell a further defense — he can claim it was DKI that did it. But again, it’s notable that he does NOT suggest this as an explanation, especially nearly a month after the case was filed, when this scenario as been discussed. Plus being involved with AdWords, you’d expect him to have an intimate knowledge of how AdWords operates.
Now, apparently it was DKI that did it. In Farrell’s suit against Schoemaker, it says:
Farrell used an advertising technique offered by Google known as Dynamic Keyword Insertion advertising. In this type of advertising, the keyword in the AdWords account is inserted into the advertisement whenever someone searches on it. When an advertisement with Dynamic Keyword Insertion is created, a special headline for the advertisement is created. Then the Google system automatically inserts the keyword in your account into the headline of the advertisement when it is searched. Farrell did not create a static advertisement that explicitly contained the term “shoemoney”; instead the term was inserted dynamically and without Farrells knowledge. Farrell merely provided the syntax of the advertisement headline that would allow the keyword to be inserted into the advertisement if and only if the Google system deemed the keyword untrademarked.
I spoke with search marketing Stephen Noton last week at our SMX Advanced conference who was telling me that DKI has indeed gotten around Google’s trademark filters when you’re making use of automated tools. Farrell seems to have done that, as his suit also says:
Farrell created his list of thousands of keywords to be included in his Adwords account by searching www.google.com/sponsoredlinks using generic terms such as “internet marketing”. The sponsored links generated by this search were transferred to an Excel spreadsheet and the visible URLs were then refined as a group of keywords through use of generic Excel filters and various concatenation formulas. These same filters and concatenation formulas were also used to create thousands of corresponding Ad Groups and advertisements. Each grouping of keywords and advertisements is known as an Ad Group. Using this automated process, it was possible to mass-produce thousands of small, tightly themed Ad Groups, each of which contained a small number of keywords.
You can find the entire suit here or embedded in our story, below:
Here’s past coverage from us of the case:
- Google Employee Alleged To Have Bypassed AdWords Trademark Policy For Own Benefit
- An Update On ShoeMoney Vs. Google Employee Trademark Case
- Why Hasn’t Google Cleared, Fired Or Suspended Accused AdWords Employee?
- Google Finds No Data Misuse In Shoemoney Trademark Case
Schoemaker is sending us a response shortly, which will be postscripted here.
Postscript: Here is Schoemaker’s statement:
I received word that Keyen Farrell filed a lawsuit against me today for a statement I made in connection with the trademark infringement lawsuit I filed in April against him and his father. Farrell’s lawsuit is a transparent litigation tactic that he is using in an attempt to deflect attention from the trademark infringement allegations I previously made against him. There is no merit to Farrell’s lawsuit and I intend to vigorously defend against these claims. I am confident that I will be successful in defending against these baseless allegations. This will not deter me from pursuing legal action against people who infringe upon my intellectual property for their own commercial gain.
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