Advertisers Wasatch Out - Utah Passes Anti-Adword Law
The use of trademark keyword advertising seems to have reached a pretty decent equilibrium in the online marketing world. Sure, many advertisers piggyback off of the interest associated with other marks, but sponsored link adwords have evolved into a genuine tool with little likelihood of confusing consumers as to origin. Google has been vindicated a number of times in the past on this practice.
That equilibrium could be upset by the Trademark Protection Act recently passed by the Utah Senate and enacted into law. The law allows owners of trademarks and, potentially, domain names to register a mark and have a cause of action if that mark is used to trigger an advertisement of another business, good or service. Given the reach of the Internet, the bill certainly faces the possibility that a court could declare it unconstitutional on dormant commerce clause grounds. Until then, the law further clouds the picture for key word advertisers. And, as Professor Eric Goldman points out in his blog, recent validations of the scope of Section 230 preemption could serve to protect Google and other online intermediaries. This could again leave advertisers with most of the risk.
Steve Cosentino
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Reader Comments (2)
Is Utah going to legislate all of its concierge desks into illegality, as well?
Google is nothing more than an online concierge that we visit when we are wanting to find something. They gladly do the service of pointing us in the right direction, but they also offer some additional advice on the side, literally. True, they get their kick-backs on the side, but hey, you, the consumer, make the final decision of whether to accept their advice.
Only difference, Google (and search engines) are kind enough to clearly label their "side advice" as "sponsored results."
The government has no right telling google or your supermarket what to display on store shelves. When a consumer walks into google and asks to be pointed to a certain brand of cough syrup, google has every right to stock the neighboring shelves with competitors' products. In the end, the consumer picks-up/clicks on the product of its own choosing!!! Utah lawmakers passed a bad law, on the bad advice of bad men looking to score a bad-ass contract!