Empirical study on trademarks as keywords

David Franklyn & David A. Hyman, Trademarks as Keywords: Much Ado About Something?

We report on the results of a two-part study, including three online consumer surveys, and a coding study of the results when 2,500 trademarks were run through three search engines.  Consumer goals and expectations turn out to be quite heterogeneous: a majority of consumers use brand names to search primarily for the branded goods, but most consumers are open to purchasing competing products.  We find little evidence of consumer confusion regarding the source of goods, but only a small minority of consumers correctly and consistently distinguished paid ads from unpaid search results.  We also find  that the aggregate risk of consumer confusion is low, because most of the ads triggered by the use of trademarks as keywords are for authorized sellers or the trademark owners themselves.  However, a sizeable percentage of survey respondents thought it was unfair and  inappropriate for one company to purchase another company’s trademark as a keyword, independent of confusion as to source.  

I have some quibbles with the interpretations, particularly with respect to the control/distractor question about Google’s selection of ads that isn’t really a control since a reasonable consumer might well think that Google’s marketing department selects ads.  Someone who selected that “control” to classify a link seems likely to understand that the link is there because Google hopes to get paid for it, even if they’re confused about conscious/case-by-case selection.  Adding those responses to the “paid advertising” responses changes some results significantly.  I also have doubts about the analysis suggesting that “people think X is unfair” means “people want a law against X” or even “there ought to be a law against X.”  Nonetheless, it’s valuable empirical work that should be much cited.