Wednesday, November 25, 2009

Fighting confusion with keywords

Going Rouge, the unflattering version of the Sarah Palin story, is apparently causing enough confusion with Palin's Going Rogue that the latter's publisher is buying keyword ads on Going Rouge (though I didn't get them as of a couple of minutes ago--not sure what that means given the increasing personalization of search; see also results from Google Suggest). What that says about the American standard of spelling I'm not sure.

The level of confusion recounted is intense:
Colin Robinson, co-publisher of [Going Rouge], told Page Six: "We have been contacted by numerous media outlets across the country asking for interviews with Sarah Palin, or companies offering security for her while on tour.

"One Web site not only thought we were Ms. Palin's publishers but called the book 'Going Rough.'

"We've noticed that someone, presumably HarperCollins, has been buying ads on Google redirecting people looking for 'Going Rouge' to 'Going Rogue,' which seems very unsporting of them."

Victims of the "Rogue"/"Rouge" saga include CNN's Political Ticker, which quoted Obama adviser David Axelrod saying he'd be borrowing Obama campaign manager David Plouffe's copy of "Going Rouge."

USA Today's section The Oval wrongly posted the cover of "Going Rouge" with a review of Palin's book. It has since corrected the confusion with the statement: "Erratum: An earlier posting featured the photo of a different Sarah Palin book. The Oval regrets the error." Last week, Fox News Channel apologized for showing the cover of the takedown book while discussing Palin's memoir.

Robinson added: "We are sure that many people who mistakenly bought our book will have been pleasantly surprised. You learn more about the real Palin in our version."

So far, HarperCollins has not made any public legal threats. Even with this kind of confusion--and even with Robinson's arguably unwise statements--it may make more sense to fight this in the marketplace than to file a lawsuit that would undoubtedly play as censorial.

2 comments:

Dave Heal said...

Don't you think this kind of confusion is something she has little to no control over? I'd imagine a judge would find that the political value of the parody would outweigh any claims she could make under 43(a) about unfair competition due to the name/cover being so similar.

And she almost certainly has no trademark rights in the title of a standalone book or in the design of the cover, right?

Rebecca Tushnet said...

On the one hand, there are lots of successful lawsuits based on much less evidence of confusion. On the other, I agree that the political value here makes the free speech claim strong. Maybe I should use this on my next exam.

The publisher couldn't register the title as a standalone work, but 43(a) protection remains available because it's written a lot more broadly.