We have covered many of the search ad keyword lawsuits aimed between competitors or directly at the search engines in the past. Nowadays, it seems like a new suit around this topic is filed weekly. Typically these suits go after trademark violations and the like, but a new suit is focusing on a privacy legality.

Suit over search-engine keywords tries new angle from the Associated Press reports Habush Habush & Rottier is suing Cannon & Dunphy for buying their name on Google and Bing. Habush Habush & Rottier is taking the privacy angle, where in Wisconsin there is the “right-to-privacy statute” that prohibits the use of any living person’s name for advertising purposes without the person’s consent. Yes, both firms are based in Wisconsin.

Robert Habush, the president of Habush Habush & Rottier said:

We believe this is deceptive, confusing and misleading. If Bill Cannon thinks this is a correct way to do business he needs to have his moral compass taken to the repair shop.

Cannon told the AP:

This is equally available to Habush if he weren’t so cheap to bid on his own name.

I am no legal expert, but this case does seem unique from all the other legal cases on search ads.

Google Can Sell Trademarked Keywords, EU Adviser Says from Bloomberg News reports the EU’s highest court has ruled Google can sell trademarked keywords in search ads. As we reported back in June 2008, Louis Vuitton sued Google over trademark issues with search ads and Google then appealed to this court. Google has won that appeal and has set the law on this matter across the whole European Union.

Advocate General Luis Miguel Poiares Pessoa Maduro said in a non-binding opinion to the European Court of Justice today in Luxembourg:

It is important not to allow the legitimate purpose of preventing certain trademark infringements to lead all trademark uses to be prohibited. Since the use by Google does not involve identical or similar goods or services, in principle there can be no risk of confusion on the part of the consumers.

In the US, Google recently allowed trademarks to be used in the AdWords copy.

Jeremy “Shoemoney” Schoemaker has confirmed that the case between his company and Google AdWords employee, Keyen Farrell, has been settled. Jeremy said, “I can say that my lawsuit against the Farrells was settled,” in his blog.

For more history on this case, see the following stories:

• Keyen Farrell Countersues Jeremy Schoemaker, Claiming Defamation
• Why Hasn’t Google Cleared, Fired Or Suspended Accused AdWords Employee?
• An Update On ShoeMoney Vs. Google Employee Trademark Case
• Google Employee Alleged To Have Bypassed AdWords Trademark Policy For Own Benefit

It is not uncommon for businesses to find that the relationship they have with their affiliates is one of the most difficult to handle. On the one hand, affiliates can be valuable partners that provide leads and sales for your company. But on the other hand, they are independent entities which require compensation for their services and have their hearts equally divided between your best interest and their own. But if you stop and think about it, this is not an unusual situation: your business probably relies on a number of providers and suppliers with whom it has built a relationship of trust based on mutual dependence.

One of the most common points of conflict is perceived to be the moment when a business is asked to decide whether affiliates—for example, providers of voucher and coupon services or cash back sites—should be allowed to bid on trademark brand words. If they are allowed to do so, consumers entering “M&S” in the search engine, for example, will not only find the link to www.marksandspencer.com displayed on the search page, but also links to a number of websites offering discounts and vouchers for the purchase of Marks and Spencer’s products. If you use affiliates, it is up to you to ensure that your site comes out on top in search rankings, and affiliates are unlikely to bid on your brand so intensely that they knock you out of the top ratings.

If affiliates really are more popular than your company’s own ecommerce site—and they feature higher in the page rankings than the company’s own website—customers searching specifically for your brand are very likely to end up purchasing the product via a website other than your own. The lead gained will then have to be paid for by your company, somewhat reducing its value, even though the consumer would have clicked on your site and not the affiliate’s had the rankings been more favourable.

A burning issue for businesses that have experienced this shift in attribution of sales leads: are the high-ranking affiliates cannibalising sales or is it simply a case of improving the traffic to the brand’s own ecommerce site? Improving your paid-for search results as well as your natural results should be the pressing issue for a business whose affiliates are attracting more traffic than the main site. If the consumer typed in a specific brand term, they almost certainly have been influenced to some extent by the brand’s own marketing and advertising; failing to optimize search lets these efforts down in the last lap. Understandably, however, businesses feel that affiliates should not charge for leads generated on the back of promotional activity that is not their own.

Because the acquisitions made through affiliates carry an associated cost, marketers tend to devalue them. First, they deduct the cost per acquisition (CPA) charge for affiliates, then the cost for the brand’s own marketing effort—which often drives the consumer on to the search engine—and finally the extra bidding cost of trying to keep the brand at the top of the search results page. Most of the leads, however, are entirely new, so they do represent added value in spite of the cost.

There is, however, another important aspect to consider before letting fears of cannibalisation and plummeting return on investment (ROI) damage the relationship with affiliates. Google has recently relaxed its regulations against bidding on competitor trademark names in most countries. For example, when M&S bid on the term Interflora, M&S appeared on the same search page as the brand. Since Google currently has no regulations against competitor trademark term bidding, affiliates can bid on key brand terms in to keep competitors out of that all-important first search page. While affiliate bidding may add a fractional cost to the process of customer acquisition, competitors really are driving business away with their aggressive bidding.

If relationships with affiliates are managed more openly, concerns over the cannibalisation of traffic can be quelled. Last-minute solutions such as lowering commission budgets and suspending programmes are simply unacceptable and feed into the climate of “every man for himself” on which mistrust is based. Some businesses have even gone as far as making up excuses to legitimise suspension of affiliate programmes over Christmas, a time of the year that affiliates have been gearing up to as much as your own business.

A practical solution that prevents the unease sometimes associated with affiliate relationships is to suggest different rates of commission depending on the different type of lead or customer acquired. This way, for example, if the consumer provided by the affiliate turns out to be a returning customer who has previously bought through the ecommerce site, the payment can be set at a lower rate than if the consumer is an entirely new lead or a person whose custom is only available to the business through the intermediation of affiliates.

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:

Keyen Farrell Sues Jeremy Schoemaker

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.

If you are a Google Adwords customer you may have read that the Adwords’ trademark enforcement policies are going through a big change which will impact the control that you have over use of your brands on paid search.  The new policies will impact you starting on June 4^th and June 15^th, 2009.

Earlier this week, Brad Geddes discussed the changes and how they would impact ecommerce sites and affiliates. Today, I want to focus on brand owners, offering cautions and recommendations to make sure you fully protect your brands when the changes take effect.

When it comes to trademarks, there are four types of uses that brand owners need to watch out for on paid search:

1. Keyword sponsors. This is when an unauthorized advertiser sponsors your brand as a keyword so that the advertiser’s ads appear when a user conducts a search for your name or products.
2. Ad copy use. This is when an unauthorized advertiser uses your brand within ad copy text.
3. Display URL use. This is when an unauthorized advertiser uses your brand as part of its display URL.Examples: Sub-domain e.g. brand.dealscompany.com Double sub-domain e.g. yoururl.com.dealscompany.com A top level domain that includes your brand e.g. branddealscompany.com or brand-dealscompany.com An indexed page e.g. dealscompany.com/yourbrand
4. Display URL hijack: This is when an unauthorized advertiser uses your brand as the display URL, and either sends traffic to you as in the case of an affiliate or diverts traffic somewhere else as in the case of a brand hijacker. While all search providers claim to not allow the latter scenario, there are many examples of deals, promotions, and/or email list companies engaging in this tactic to mimic a site that looks like that of a brand or trademark owner. I will not name them here to protect the innocent brand holders, but feel free to email me for examples.

Brand users frequently include:  Competitors, affiliates, resellers, promotions and giveaway  sites, email list companies, parked domains, spyware, comparison shopping engines, and other media outlets from whom you have purchased ads.

New policy for keyword sponsors

Beginning on June 4, 2009, Google will add more countries to the list where it will not investigate the use of trademarks as keywords. A full list of impacted countries can be found here, which includes the USA and the UK.

This means that keywords that were restricted before will no longer be restricted after June 4^th.

Essentially, anyone who wants to sponsor your brand name, can and probably will.

New policy for ad copy

Beginning June 15, 2009, Google is relaxing its policy on use of trademarks in ad copy text.  In the past, Google has restricted the use of brand names in ad text and was willing to take action to prevent it which allowed you to authorize specific resellers to use your brand while restricting the remainder of the market.  Now Google will allow previously disapproved ads to run on Google.com and the content network in the USA, without the need for approval by the trademark owner.  Google will use its own editorial judgment to determine if it will allow the ad to run.

This means that ads containing your brand will start to run more frequently and pervasively after June 15^th.

Essentially, anyone, except for direct and obvious competitors, will be able to use your brand in their ads.

New policy for display URLs

Brands are often used in display URLs as a great way by legitimate resellers to direct traffic to specific product pages, but also, unfortunately as a clever ruse used by unauthorized advertisers to siphon traffic.

Unfortunately, Google, along with the rest do not investigate the use of brands in display URLs.  The policy:

“Although display URLs are subject to our editorial guidelines, we don’t investigate display URLs in response to trademark complaints because the presence of trademarked term within a URL may not necessarily constitute trademark use, such as in the case of post-domain paths or subdomains.”

Essentially, the display URL is fair game and can be used as an alternative to ad text use with the same or better influence on the consumer’s impetus to click on the ad.

What should you do?

First, you need to make sure that your ads and your brand are present when a user is searching so that posers do not siphon your clicks.

Second, you need to report any display URL abuse to Google.  While Google does not police the display URL, if you find brand hijacking causing traffic to be diverted to a site that isn’t yours, Google will take action as this practice violates their editorial guidelines.

Third, be wary of sending out cease and desist letters.  These rarely result in a behavioral change.  The risk is that the recipient can file for declaratory judgment against you in their state causing you to litigate in the recipient’s state instead of your own. Read more here:  http://en.wikipedia.org/wiki/Declaratory_judgment.  If you plan to litigate, gather your evidence and make sure you have a lawyer.

Fourth, to stop comparison shopping engines or other media outlets from using your brand to generate clicks, negotiate deal terms with each one when you purchase your ads from them that restrict their use.

Google has recently made two big changes regarding trademark usage within AdWords. One is a shift in the number of countries where trademarked words are allowed as keywords. The other is how trademarked words are allowed in ad copy within the US.

Google’s trademark policy has been rehashed in several large media outlets. Unfortunately, most of them got it wrong. So to clarify, here is a rough overview of the current AdWords trademark policy for the US, UK, Ireland, and Canada:

• Any trademarked term can be used as a keyword
• Any trademarked term can be used in ad copy
• If the trademark holder asks Google to not allow others to use a trademarked term, then it will be disapproved from ad copy, but can still be used as a keyword
• A trademark holder can allow only certain companies to use their trademark in ads (but this is all or nothing, with no conditional usage)

Country expansion

Google’s policy is the offspring of many lawsuits, the most talked about one being the 2004 decision of Geico vs Google. Google was only on strong legal footing in North America, and had a completely different policy for the rest of the world. Last year, Google extended its policy to include UK and Ireland.

Earlier this year, Google extended the US policy to another 190 countries. There are some European countries not yet included. A full list of countries where you can use any trademark as a keyword can be found here.

If you offer goods or services with trademarked words in any of these countries, you might want to start adding those services and products as keywords to find new search inventory.

US trademark changes

Google recently announced changes to its US trademark policy. Those changes can be summed up quite easily:

• If a trademarked term is generic or descriptive and does not reference the holder, or the term is not trademarked for your industry, you can use a trademarked term in the ad copy (for instance, an orchard farmer can advertise that they sell apples)
• If you sell a trademarked product, resell the product or sell replacement parts for the product, you can use the trademarked term in your ad copy
• If you are an informational site that is non-biased, and does not sell or facilitate the sale or a product, you can use a trademark when sending traffic to a review or comparison of the product

Who does this change benefit the most?

If you sell trademarked products or offer trademarked services, this is a fantastic change for you. In the past, if you sold iPods, you were never able to advertise them by name. That’s changed now. Ecommerce sites should start re-writing ad copy today to take advantage of this change.

This change will also make life easier for franchises. At present, most franchise trademarks are held by the corporate office. If an individual franchise tries to use their own business names in ads, those are are usually rejected as the account does not have permission to use their own trademarked business name in the ad copy. Under this new rule, they will be allowed to use their business name without having to get the corporate office to fax paperwork to Google.

At points in time, keywords such as Botox or Invisalign have been difficult products to offer as you couldn’t use them in ad copy. It was very difficult for consumers to determine which dentists offered Invisalign without clicking on every ad to see if it was in the dentists included products list. For keywords such as these, Google would argue that the consumer benefits. However, those providing these services benefit even more as now they can call out those exact services in ad copy.

The way that Google interprets their own policy will determine what informational sites actually benefit from this change. This looks like a perfect change for a site like CNET.com. However, CNET does track all their offers, and may even get paid when they send converting traffic to another site (I don’t know). However, many merchants track the quality of traffic sent to them, and if none of the traffic converts they stop buying ads on those sites. On paper, this change looks good for review sites, newspapers who offer reviews, and so forth. However, there is still interpretation left to decide how well this will work in practice.

How will this change affect affiliates?

There are two types of affiliates who buy PPC:

• Those sending traffic to the merchant site
• Those sending traffic to their own site

Affiliates who direct link to a merchant’s site can gain tremendously by this change. Those affiliates can now go and buy a significant amount of trademarked keywords as their accounts should be treated just like the merchant buying traffic directly to their site.

Affiliates who send traffic to their own sites, however, may find the new rule change makes things more difficult. For example, say you are an affiliate who offers free insurance quotes and has a consumer fill out forms to receive the quote on your website. However, before the actual sale of the policy, you pass the consumer to the insurance company’s website. In this case, can you use trademarked insurance names in ad copy? Or more importantly, will the Google reps understand you business well enough to know if you should or should not be able to use these trademarked words? It’s not clear.

Many affiliate sites look just like a merchant site, and it is not until the actual purchase is about to occur that the searcher goes to the actual merchant. This is another one of those very ambiguous cases that could be decided either way.

Pre-sell affiliates, those with one page wonder sites where the only purpose of the page is to go to the merchant or buy a ClickBank product should not see any benefit from this change as they do not actually sell the product. However, if these sites get classified as informational, then they might be able to use trademarked keywords in ad copy.

Affiliates who use comparison pages could be the biggest winners. The question will be how Google interprets the phrase “facilitate the sale of a service or product.” If facilitate the sale only pertains to selling the product on a site you own, then comparison affiliates will be the largest affiliate winners. However, if Google determines that affiliates are offering biased reviews to get people to buy their products, then these affiliates will not make any gains. If some of these sites are disapproved for being biased, and others approved for being non-biased, this could into a customer service nightmare.

How suppliers and merchants might change agreements

Many merchants currently put restrictions into their affiliate agreements or terms of service that affiliates cannot use certain keywords. Amazon recently announced that they would no longer pay affiliates who send PPC traffic to Amazon’s site. Expect more merchants to add excluded keywords to their affiliate deals.

Another ripple effect will be from suppliers making changes to contracts that would disallow merchants from using certain words, or their product names in PPC ads or keywords. While Google won’t police these activities, do not be surprised if a few suppliers that also sell direct to consumers online add new clauses to their contracts.

Trademarked business names

If your business name is not a product name, then your competitors have no way of placing your actual business name into the ad copy yet.

When business names are placed into ad copy, that could be considered the start of customer confusion. This can happen when a customer explicitly looks for one business, but is fooled into viewing another business due to how ad copy is written.

While your competitors do not have an easy way to put your trademarked business name into ad copy, business review sites, such as Yelp, can do this. If business comparison and informational sites start writing ads that contain business names, a whole new wave of lawsuits will follow.

If these sites are sending traffic directly to a review page for just that site, then you might not pay much attention. If they are sending traffic to a review page that also contains other information, such as related companies, then you might consider buying ads on those sites, or seeing if there are ways to put your business information there so you can be shown alongside your competitor’s information.

Will trademarks be better enforced?

Ad copy is suppose to be spelled properly. Trademarks are supposed to be kept out of ad copy. Therefore, trademark misspellings should not occur. However, iPod has been one of the most creatively worked around words I’ve ever seen.

Here are common spellings for iPod in search ads:

• lpod (l instead of i)
• iP0d (zero instead of 0)
• iPodVideo (running words together to form new words)
• Pod
• lP0D (an l and zero, and all upper case when shouldn’t be spelled that way).

At present, while Google does a decent job of automatically blocking the exact use of a trademark, creative uses of words need to be policed by the trademark holder. With the loosening of restrictions, hopefully the allowed trademarks will be better enforced and not lead to a new wave of poor ad experiences.

What’s the end result?

Ecommerce sites selling products with trademarked names and businesses offering trademarked services are by far and away the clear winners with these changes.

Informational sites, once it is determined what is a non-biased, non-commercial, informational site will be the second largest winner.

If the above were the only companies affected, then I would argue that consumers are getting a better experience in searching for information and products on the web.

However, these new policies changes will affect more than those few groups of companies. It’s how these other trademarks are enforced, or allowed to be used in ad copy, that will ultimately decide if these changes enhance the consumer experience or just lead to more lawsuits and more confusion among searchers.

Disclaimer

Companies can still sue advertisers regardless of whether they follow Google’s policies. Suppliers and merchants can put restrictions into their contracts to restrict keyword buying. Just because you are following Google’s policies does not mean that you cannot be sued by another advertiser. As always, first check with your lawyer before going down the path of using trademarked terms in ad copy or as keywords.

Earlier this month, my Why Hasn’t Google Cleared, Fired Or Suspended Accused AdWords Employee? article asked why Google hadn’t yet publicly commented about accusations that one of their employees may have abused the AdWords system for his own benefit. Now the company is speaking up — and saying it has found no wrongdoing.

Google’s sent me this statement:

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.

Talking with the company a bit further, it stressed that the human error was on the part of another AdWords employee, not Keyen Farrell, who is the defendant in the case Jeremy “ShoeMoney” Schoemaker has filed involving the use of his trademarks in AdWords copy.

Taking over a month to investigate the situation and make this needed comment still seems a long time, but at least we got there in the end.

Meanwhile, Schoemaker informs us today that that the defense has withdraw its motion for dismissal, so the case will stay in Nebraska and move into the discovery process.

Google, which recently liberalized the use of trademark terms as a trigger for showing ads, has again opened up its ad policies to allow trademark terms to be used within ad copy, in certain circumstances, within the United States.

Currently, registered trademark holders can request that Google prevent their trademarks from being used in ad copy. Trademarks can still be used by anyone to trigger ads, however. Beginning June 15th, this will change — as long as the advertiser is a reseller of a product or is providing information about it.

How It Works

Let’s use Apple as an example. Let’s assume that Apple asked Google to prevent the trademark “iPhone” from being used in ad copy under the current policy (this doesn’t appear to be the case, by the way). Let’s also assume there’s someone who sells iPhone cases. Currently, they could have an ad show up for “iphone,” but it couldn’t use the word. It might look like this:

Need A Case? We have a large selection of cases for your phone!

With the page, the ad can be more specific:

Need An iPhone Case? We have a large selection of cases for your iPhone!

Google says the change is designed to help relevancy, and that’s a valid explanation. Many studies have shown that searchers find listings more relevant when they contain the actual term they searched for.

Not everyone can get around the trademark ban, if a trademark holder has requested it, however. Exceptions are made for:

• Resellers of products
• Sales of components, parts, and “compatible products” (accessories)
• Informational reviews, as long as the reviews are non-competitive and the advertiser doesn’t sell or help sell goods and services of a competitor of the trademark holder

That last one is going to be fun to enforce. If you’re a review site with ads, and some of those ads are for competitor products, is that “facilitating the sale” of those products and thus violating the policy?

What’s also unclear is how this might impact advertisers who run protest sites against certain companies. For example, if someone wants to provide information about why you shouldn’t eat at McDonald’s, for some reason, can they write a review that will qualify to get around the ban on using “McDonald’s” in their ad text (if McDonald’s had requested such enforcement, of course).

Terri Chen, senior trademark counsel at Google, first said that Google’s “Anti Policy” would cover this, which states:

Ad text advocating against any organization, person, or group of people is not permitted.

Of course, what’s “advocating against” is a fine line, she acknowledged, when I asked why ads between John McCain and Barack Obama, during the US presidential election last year, wouldn’t be considered advocating against the opposing candidate.

She did say that negative reviews wouldn’t fall under the anti-ban. IE, if you write a negative product review, you could still by an ad using the product trademark, if you wanted.

Odd Timing

The move is the latest in a series of liberalizing what’s allowed with trademarks in AdWords. Last year, Google lifted restrictions on using keywords as a trigger term for ads in the United Kingdom and later in Ireland. Then earlier this month, it dropped restrictions in 190 new countries. As Chen said, it’s now easier to list the place remaining where Google still has restrictions than not: chiefly EU countries other than the UK and Ireland and a handful of other places, she said.

Why’s the EU so special? Particularly in France, the courts haven’t been kind to Google. It’s lost a number of cases, with the Louis Vuitton one standing out. Chen said Google didn’t feel it was the right time to make a change in most of the EU, but in the UK and Ireland, it was felt that trademark laws were more similar to the US. That is, designed to protect against consumer confusion (and thus more permissive) than in France where they are seen as almost protecting property rights.

Currently, the European Union’s Court Of Justice is reviewing a case that Google argued last month involving trademark usage. If Google gets a favorable ruling, then the policy in the EU might change. Meanwhile in the US, things remain uncertain in trademark law. The highest ruling so far has been involving Rescuecom, where an appellate court refused to dismiss a case against Google. That means all rulings involving paid search and trademarks remain on the district court level — and in different district courts, so there’s no clear “law of the land” ruling that stands out.

So the legal front doesn’t seem as clear as a few years ago, plus Google’s taken recent heat over ads linked to trademarks. Isn’t this a terrible time to be more liberal?

“I definitely think it’s true that the law is unsettled, but we still believe our policies are correct,” Chen said. “We want to focus on what’s best for user.”

Again, I agree — the trademarks in ad text will be a better user experience. But why all of a sudden is Google opened things up broadly? From my call, I couldn’t get a crystal clear answer as to why other than after a regular review, it seemed the right time for a change.

Of course, the right time for such a change might also be because Google’s seeing its revenues slow. Letting more ads show for trademark terms — letting trademark terms appear in ad copy — both help the bottom line. Isn’t that is? No, Chen said.

You Can Buy Google

Chen added that its policies are in line with Microsoft and Yahoo. I haven’t gone back and checked on this. In fact, I’m overdue to have us churn out a good comparative look at how trademarks are treated on the three major players, as well as a review of various legal cases. We’ll get working on that.

In the meantime, a last point. Want “Google” to appear in your ad text? If you meet the new criteria, you can. “We’ll treat our brands the same way as others,” Chen said.

For more, see related discussion at Techmeme.

We obtained documents on a court order that the judge issued in the Jeremy Schoemaker case against a Google employee for trademark infringement. Both Jeremy and the defendant filed motions, in which the court ordered the defendant to hand over the historical data of his AdWords account, amongst other items.

The court order, which is embedded below, gives Jeremy the right to conduct jurisdictional discovery prior at this point in time. Which means he can subpoena Google, the Googler and his ISP for information related to the case. Technically, I believe, this means Jeremy can be granted access to the historical data found within the Google employee’s AdWords account, plus access to any traffic data related to the trademark, ShoeMoney.