It would be too easy to pile on the NAR, what with their recent tempests in respective teapots. But here is a hypothetical –
What’s the NAR going to do in this scenario as described at SearchEngineWatch?
Adding more confusion to the case law surrounding trademark issues and search advertising, a Sixth Circuit federal court in Kentucky found that keyword advertising is a “trademark use in commerce” under the Lanham Act.
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If buying an ad triggered by a trademarked keyword is eventually found to be a trademark use in commerce, that would essentially prevent advertisers from doing so legally. Goldman has written quite extensively about online trademark law, and he agrees with the Second Circuit courts.The Lanham Act defines “use in commerce” as using a trademark on physical packaging or displays, or “in the sale and advertising of services,” an ambiguous definition when it comes to the Internet and search engine marketing, says Goldman. He expects the matter to remain unresolved until Congress passes a new law or the Supreme Court makes a ruling.
Google’s current trademark policy allows advertisers in the U.S. and Canada to trigger an ad from another party’s trademarked keyword, but not to use the trademarked term in the ad text. In all other countries, advertisers are not allowed to do either.
If a Realtor advertises with Google for “Charlottesville Realtor,” or “Phoenix Realtor” would they be met with a Cease and Desist from NAR? While “Realtor” is trademarked, wouldn’t Realtors benefit more by having the word officially enter the vernacular akin to Doctor, Lawyer, Mechanic?
Jeanne Breault says:
Just thinking out loud…
First, for trademark protection, a REALTOR(R) always has to use all caps with circle r. Can google ads accommodate that? I haven’t done any so I don’t know if they are created in html or, if not, how many special characters are available.
Second, at least in FL, if a REALTOR(R) uses that trademarked word, the name of the broker has to appear with it. So would that mean that since the “Jacksonville REALTOR(R)” in the google ad is me (or to put it another way, the ad points to me), would my broker’s name have to be in the google ad?
February 8, 2008 — 9:01 am
Ken in Chicago says:
“While “Realtor” is trademarked, wouldn’t Realtors benefit more by having the word officially enter the vernacular akin to Doctor, Lawyer, Mechanic?”
How would it benefit a REALTOR(R)?
As a side note if “Google’s current trademark policy allows advertisers in the U.S. and Canada to trigger an ad from another party’s trademarked keyword, but not to use the trademarked term in the ad text.” is correct there are a ton of advertisers that are violating Google’s terms. Do a search for any “major city REALTOR” and you will see a number of sites that are using the trademarked word in the title of the ad and in the ad copy.
February 8, 2008 — 1:59 pm
Bob in San Diego says:
No.
Realtor denotes membership in a trade group. NAR made that argument and the courts upheld it. It is one of the few things where I agree with NAR.
Buying ppc for Realtor terms can still be done without violating trademark if you are a Realtor.
February 8, 2008 — 1:59 pm