Imagine the scene: In house counsel from Google, Microsoft, AOL and Yahoo rise to explain to the restless crowd of several hundred owners and protectors of famous trademarks, just why it is that they allow competitors to bid on those famous trademarks to trigger ads for the competitor's products. The phrase "smoothing ruffled feathers" was used more than once in the ninety minute presentation. The brave presenters were Peter Becker of Microsoft, Laura Covington of Yahoo, Lauren Fisher of AOL, and Rose Hagan of Google.

Kudos to INTA for pulling that one off, but perhaps it's not so surprising that these lawyers would face a seemingly hostile crowd. The search engines have a sizable PR and education job to do when it comes to the emotionally charged issue of keyword advertising, and what better venue than an audience of trademark holders to make their case.

In fairness, the search engines are attempting to operate within the law and balance the rights of consumers, advertisers, and trademark holders, and the law is currently evolving on the topic. And, they have some very good basic points. One common theme is that they should be able to operate under the same that apply in the brick and mortar world. Some good analogies were made (ones I've made in the past) such as the right to purchase shelf space in the supermarket next to a competitor, or the practice of printing coupons for competing products on the back of receipts at the super market (i.e., you buy some Pampers, and get a coupon for for Huggies). These things are tolerated in the "real" world, but in the intangible world of online commerce, keyword advertising draws a much more visceral response.

The most striking thing gleaned from the presentations from my perspective is just how differently the search engines treat the issue of keyword advertising as a matter of policy.  Google is clearly the most aggressive of the crew, and they allow the purchase of trademarks to trigger the ads of competitors, with the caveat that the text of the sponsored ad must not use the trademarked trigger term. The theory is, I believe, that Google thinks it has a winner on the argument that the use of trademarks to trigger ads is not "trademark use."  Because you need such trademark use, together with a likelihood of confusion to make a trademark infringement case, you can never get there with Google's approach.  If the trademark is never used in the triggered ad, and the use of the trademark as a trigger does not count for trademark purposes, no infringement issues.  It also has the benefit of being very clean, and very easy to implement.  No judgement is involved, and it can all be automated.  Very scalable.

Yahoo, AOL and Microsoft on the other hand, all take a more measured (and less scalable) approach, and allow for the purchase of trademarks to trigger ads only if the triggered ad clearly involves a fair use of the trademarked term. Yahoo (I believe) goes even further and actually requires that the trademarked term be used in the text of the sponsored ad.  The theory here is that if the ad is truly fair use (such as comparative advertising), that is most clearly demonstrated by the appropriate use of the trademark in the sponsored ad (for example "Thinking about a Dodge Durango? Compare the safety rating of the Toyota Tundra before you buy." )

In the end, it was clear that the search engines are attempting to operate within the law, or as near to the fringe as they can tolerate, and to perhaps push the line a bit. It was little solace to many in the audience, as a number of the follow up "questions" demonstrated the continuing frustration of trademark holders. They can't stand the idea that competitors can get in front of their customers by purchasing THEIR TRADEMARKS!  (even though across the hall the marketing department is probably doing the same thing to their competitors.)  If you can't beat em' . . ..