Search Tidbits from ABA Annual Meeting

At the ABA Annual Meeting, I was on a panel with Rose Hagan of Google and Allison McDade of Dell. A couple of tidbits from the presentations that caught my attention:

1) Rose said that Google has now been sued 23 times in France over keyword advertising. These suits, of course, follow several Google losses in court. One can only imagine the feeding frenzy that would take place in the US if TM owners thought that they could win a TM case against Google.

2) In the Q&A, Mark Partridge of Pattishall had an interesting proposal. He pointed out that the UDRP had a substantial effect on cybersquatting, so could we put into place a similar expedited administrative process was put into place for keyword advertising disputes? Perhaps an administrative procedure where the major search engines would agree to honor the instructions of a neutral.

Two obvious questions with Mark’s proposal. First, what substantive law would the neutrals apply? We would need to develop a common set of definitions of abusive advertising techniques, and I don’t think we have this yet. Indeed, right now we have a major split between Google and Overture’s policies about TM complaints (Google removes TM references from ad copy, while Overture looks at the relationship between the ad’s TM use and the promoted URL). Further, I’m not 100% convinced yet that courts will bless either practice as absolving the search engine of liability as the policies are tested.

As a result, while I don’t think it was easy to describe cybersquatting, I think there were clearer understandings about impermissible domain name registrations than there are clear understandings about impermissible advertising. Note, of course, that neither the UDRP or ACPA try to define and then eliminate all abusive domain name registrations; these solutions merely targeted the most egregious behaviors. So maybe we’re not yet in consensus enough to give clear enough instructions to administrative neutrals to adjudicate claims.

Second, for the search engines to participate, they would need to have a safe harbor from liability (at least to the extent of their participation in the administrative procedure). I’ve become increasingly convinced that we need a statutory safe harbor to keyword liability lest we find ourselves in the French plaintiff feeding frenzy. However, perhaps a search engine safe harbor would be acceptable to TM owners if it was coupled with an expedited procedure to resolve their concerns.

3) Allison’s slides contained the following bullet:

“Studies suggest that broader search terms that do not include a manufacturer name (such as “computer,” “computer memory”) account for a large majority of total search volume and conversions (turning searchers into actual buyers). Trademark-specific searches, meanwhile, account for a much lower percentage of all online searches.”

I agree that TM keyword searches are a distinct minority of all searches (the number I recall seeing was 20%). However, in the talk, she clarified this point to mean that her understanding is that TMed keywords convert at a lower rate than generic terms. Is this true? This doesn’t sound right to me, and I had thought I had seen empirical evidence to the contrary. I’d welcome any pointers regarding the relative conversion of TMs and generic terms.

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