Ramsey could not discuss specifics of the company’s closely watched case with Google over trademarks as keywords in sponsored ads, but he explained to attendees the aggravation the brand has experienced over search results incorporating the ROSETTA STONE trademark that managed to appear above links to the company’s authentic site.
One example Ramsey cited was Rosetta Stone Greek, which used “black hat” search engine optimization (SEO) marketing techniques to drive up traffic. Examples of black hat techniques include when a site incorporates and links to words and phrases used by the trademark owner (link farming). He added that infringing advertisers have even learned how to use geo-targeting to avoid displaying infringing ads in markets where the company has offices so as to keep them off Rosetta’s radar. “Make sure you have monitors in a number of different locations and keep moving them around,” urged Ramsey.
A Google representative stood up during the Q&A period to remind attendees that the search engine’s ad platform has zero tolerance for counterfeiting, as well as proactive tools for weeding out bad actors. “You can ask us to monitor your trademarks in ad text and we will take down ads that infringe,” said the Google attorney.
She was followed by Professor Rebecca Tushnet of Georgetown University Law Center, who challenged the panel to explain why Rosetta Stone is accusing Google of direct—rather than contributory—trademark infringement in its case over keyword ads. Plaintiffs in keyword ad cases have argued that Google profits from the sale of the trademarks and is therefore directly, as well as secondarily, liable. But Tushnet asked the panel why Google is not then also liable for infringement when users click on legitimate links. “You can’t have it both ways,” she said.
Geoff Livingston, a marketing and search engine optimization expert who also spoke on the panel, said: “People don’t take the time today to discern quality information.” This makes it more crucial than ever to take creative approaches to marketing while the U.S. law on trademarks in keyword advertising is fleshed out by the courts. Livingston encouraged brand owners to incorporate social media on their sites to drive up Google search results. He suggested brands should engage in what he called “karmic marketing” that will inspire discussion on social media platforms about the brand and its competitors, rather than discounting or discrediting competitors.
