Trademarks, Triggers, and Online Search
Google policy change allowing more ads on TMs. Navigational search: allowing 3d party ads
may divert consumer attention to 3d party websites, making search harder—bad for
TM owners and consumers? (RT: how do you know that it’s bad for consumers, and
not consumers exploring alternatives? The TM owner’s site is usally first in
the organic results, so it’s right there if they want it.)
But for nonnavigational search, allowing 3d party ads may be
good for TM owners if it increases the amount of useful information.
Empirical data from France and Germany: categorizing over
140,000 different searches. Idea: if
someone enters only TM as search term, more likely that this is a navigational
search. TM + some other word, likelihood
that this is nonnavigational is higher.
Number of words also matters (e.g., iPhone + model number)—lower is more
likely navigational. Change over time—if
someone consults the search engine again, how do they change their search? Likelihood that it’s nonnavigational is
higher if they add more words and vice versa.
Results: Likelihood of visiting TM owner’s site within 10 minutes
increased (+14.7%, 80% of sample) for nonnavigational searches after Google’s
policy change, whereas for navigational searches it decreased (-9.2%).
Shift focus of debate from consumer confusion to consumer
behavior. A full allocation of property
rights to TM owner is not necessarily optimal for TM owner.
Discussant: Amanda F. Myers, USPTO
Dynamic nature of TM—making consumers use TM in new or
previously unexplored ways. Owners and nonowners can deploy them. Empirical work can turn a legal argument on
its head. (RT: I don’t get it. The legal argument (at least in the US) is
about confusion. Evidence of consumer
behavior is not evidence of confusion.
It’s not even evidence of dilution, in the sense of changing the signal
of the mark. As with cognitive models of
dilution, empirical work can give TM owners new means of defining what “harms”
them, but agreeing that this is a harm is a normative move beyond the empirical
data.)
Query whether French and German attitudes towards brands
differ.
Bechtold: information on actual purchase behavior isn’t
observable from data because of privacy concerns. (Cut off part of the URL.) So we can’t
consistently observe whether someone goes to a shopping cart. Duration/time on site—we are exploring this
more, but the data are noisy and we aren’t clear why.
Q: why not observe the order of visit and only judge the
first visit after the search?
A: it’s on our list to check.
Q: could still classify websites that allow purchase and
websites that don’t (e.g. Blackberry). Might
see differential impact. Another
comment: might see that someone goes to Amazon to buy the thing—that’s not a
diverted sale from the TM owner.
A: that’s a manual classification issue.
Q: concern would be that if someone searches on Samsung,
then goes to buy some other phone elsewhere, then back to Samsung to buy an
accessory/peripheral. (What kind of
problem or difference does that represent?
I think Bechtold’s answer was something like that—that this is probably
too granular.)
Q: effect of autocomplete?
A: can’t observe that, can only observe url.
Q: what about searches with multiple TMs? Amazon + Blackberry.
A: we used the first brand named.
Q: might be able to get category information—someone who
goes to BMW then to Google Maps might be looking at a dealer, whereas someone
who goes to another car company is still continuing the search.
A: how can we identify navigational search if a TM has multiple
meanings including non TM meaning.
Q: we’re thinking about classifying Apple etc.—though in
Germany/France, more plausible it’s used as a TM. Often marks we studied didn’t have generic
meanings in the languages, but we are trying to figure out if we have a
sufficient number of marks to control for this.
David Franklyn, University of San Francisco School of Law
& David Hyman, University of Illinois College of Law, Trademarks
as Keywords
Study in US, given over 100 keyword lawsuits worldwide, lots
of articles & CLE. Judicial “casual empiricism,” initially focusing on
diversion rather than confusion. Assumption
was that search terms reflected search goals.
Assumed consumer knowledge of labeling and architecture. E.g., 9th Cir. assumed consumers
could distinguish paid from organic/algorithmic results, and were therefore
less likely to be diverted. (My thoughts
here: Reasonable consumer is a legal construct, not a completely empirical
creature. Many theories make this a
feature, not a bug: you should learn that some uses of TMs are not authorized,
because of the needs of competition/free speech.) Assumption that use of term in ad text was
more likely to confuse/divert. So are
consumers confused? Are they even
diverted, if they are using TM as an entry point into a general search on the
category at issue?
Wanted to determine searchers’ knowledge of search engine
labels/architecture: algorithmic results are unlabeled, and you’re supposed to
be able to figure out by negative implication that they’re not paid. Google changed from “sponsored links,” which
they studied, to “ads.”
Research questions: how often are TMs bought as keywords,
and who is buying them? Why do consumers
use TMs as search terms? Are consumers
actually confused, and if so is it TM confusion, consumer protection confusion
(unawareness of what’s advertising), or some other type of confusion? Asked respondents about actual results pages.
Vendor of TM products and competing products: paid 27%,
unpaid 3%; TM owner: 13%/44%; vendor of TM products only, 6%/3%; collateral
information and sales opportunity vendor, 24%/3%, vendor of competing products
only, 6%/3%. When TM owners are present,
they are often at the top—30% of the top paid links.
What do consumers look for and expect to find when they
click on a link? Products bearing that
brand name only, 65% looking for the product/45% expect to find that brand name
only. Products bearing that brand name
and similar competing brand names, 34% looking and 39% expecting. Complicates the account that people are only
interested in the TM and anything else is diversion. (RT: Many TM owners would want to argue that
this is still diversion—taking away the “earned” benefits of being “top of
mind.”)
Asked them to ID source of links—paid, unpaid, Google’s
special marketing team (control), don’t know.
Less than half were right about the paid links being paid, and only 51%
were right about the algorithmic results being unpaid. People who were younger did better, but not
impressive.
Are consumers paying attention to labels? Asked which of these labels they’d seen—sponsored
links, sponsored results, ads, commercial ads—49% answered “sponsored results”
as a time that Google hadn’t used that in a year, while 46% said “ads,” 33%
claimed to have seen the unused control “commercial ads.” (RT: I don’t find this surprising or
disturbing in any way. They mean the same thing. People translate to synonyms
all the time. It’s a standard result in
the memory research—if you show people synonyms/words with similar meanings
they think they’ve seen them in previous word lists. There are a significant minority who didn’t
remember seeing anything, and that’s
an important number.)
Paid results—whether this was a competitor or not. About half of people correctly ID’d the
reason a link was present was that it was paid; 15% thought it was Google’s
special marketing team (the control); 14% thought that there was an
authorization relationship. Not sure was
21% (over and above the people who were obviously guessing).
Was it fair/appropriate for the paid link to appear against
Mercedes? Direct competitor: yes, 35%,
no, 39-40%; Gorgeous Luxury Vehicles (which might be selling the Mercedes too):
yes, 44% and no 32%. 25%: don’t know.
Consumer ignorance, obliviousness, and indifference is
pervasive—consumers aren’t going to police this. (RT: Which also suggests something about
major components of brand value ….)
Armchair empiricism is wrong.
Consumer goals and expectations are heterogenous. Consumer knowledge of search architecture and
labeling is limited.
Hard to make a strong case for TM likely confusion (source,
sponsorship, affiliation), but plenty of other types of confusion. 14% is low for a TM case—also note that there
isn’t a TM control, that is a link that should clearly be deemed unaffiliated. Competitors don’t seem to buy TMs all that
often, and consumers don’t seem to have a big preference to click on them, so
it’s hard to see a substantial amount of confusion. Big question: does anything
here translate to consumer harm?
Rational ignorance is often ok; people have other things to do than
understand Google’s architecture.
Future of TM: whether free riding rationales should make
more of a difference in TM law? FTC has
communicated on the issue of search result presentation.
Discussant: Carolina Castaldi, Eindhoven University of
Technology
Bringing the consumer into the debate. Results: maybe no worries, since consumers don’t
seem to have expectations to disrupt/may even appreciate alternatives. Key variable: type of product consumer is
looking for. Study here: Mercedes—durable
good, high risk purchase, effort in searching is likely to be higher.
A: we did test some other products, though not in the study
where we asked people to look at actual search pages. Defense of looking for the real consumer as
opposed to the construct of the consumer in the law. (I’m actually a big fan of this, despite my
cautionary words above—which boil down to looking at the tradeoffs; we always
need to ask “compared to what?” when we try to set a standard, because averting
confusion of any kind has costs, and the authors are well aware that we need to
ask whether we can do anything to
reduce confusion below a certain level as well as what the costs are.) Reminder that eBay tested whether it needed
to buy its own marks on Google, and it didn’t—for famous brands, it doesn’t
make economic sense to defensively purchase a TM to keep competitors away. Followup paper will explore the economics of
defensive purchasing. Not a TM
infringement issue, but has arisen because of the dynamics of search.
We didn’t come out convinced that a prohibition on
sale/purchase of TM as keywords was justified, nor did we feel that the current
TM regime mapped well onto the consumer protection issues. FTC requires clear and conspicuous
differentiation between paid and unpaid results, and it hasn’t been effective
or enforced. Supermajorities of
respondents said the difference wasn’t clear, and said they’d click less on
paid ads if they knew. This is not a TM
problem. Using likely confusion
doctrine, through initial interest confusion, to capture various forms of
consumer protection/anti-free riding ideas—and that isn’t a good idea.
Suing competitors v. suing Google? Compare to memo from tobacco lawyers:
aggressive posture on discovery—the way we win is not by spending all of RJR’s
money but by making the other son of a bitch spend all of his. This may be Google’s strategy. We are working
to unseal the record on Rosetta Stone.
American Airlines succeeded in backing Google down very early on, but
that’s about it. There’s also something
going on with Starbucks. Hard to see a
value proposition in suing Google, or most competitors. (The authors disagree on this.)
Q: how many people thought that the pages were ad-free?
A: appreciable number of people get both the two paid
regions wrong. Surveys in the UK as
well. In our new surveys, you select an
answer while looking at the relevant part of the page, and 30% are still not
saying it’s an ad. Our hypothesis is now
that you can’t fix it, because of learned behavior over where we think the
relevant regions are. In the beginning
there were no ads on the top, and they gradually put them on the top, then
gradually increased the number of ads on the top, then gradually changed the
shade of the ad box shading, and gradually shrunk the size and decreased the
contrast on the “ad” disclosure. And
then they added in Google Shopping, which nobody understands.
In reaction to Bechtold’s comments: search is more dynamic
than what we could test. Ultimate test would be simulation, asking people to
perform a search/decision task. They go
back and forth and see something interesting and go off. We tried to ask people how they would behave,
but self-reported knowledge isn’t as good as observational. Ben Edelman has tried to simulate, with mixed
results. Goals are ambiguous, but (lack
of) knowledge of search page is robust; whether that leads to ultimate
confusion in a TM sense is very open to question.
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