Search Engine Strategies Copyright and Trademark Panel

By Eric Goldman

Today I participated in the Copyright and Trademark panel at Search Engine Strategies in San Jose, along with Clarke Walton, Eve Chaurand-Fraser of Ask, Mary Berk of Microsoft and Debra Wilcox of Baker & Hostetler. As usual, Jeff Rohrs was our moderator. Some interesting tidbits I learned:

* Microsoft is loosening its search engine trademark policy somewhat. They will still allow trademark owners to block competitive purchases of their trademarks as keywords. However, Microsoft will reduce the documentation necessary for resellers and affiliates to purchase trademarks because Microsoft isn’t in a position to arbitrate rights under a third party contract. Further, to reduce advertiser frustration, they will not require verification from advertisers seeking to purchase a third party trademark (assuming the TM is otherwise available for purchase). It seems like Microsoft’s policy is regressing just a bit to look more like Google’s. This should also have the effect of increasing Microsoft’s ad revenues a little and reducing their administration costs.

* Eve Chaurand-Fraser said that Ask receives about 10 take-down requests each week, split about equally between copyright, trademark and personal names. I was a little surprised the number was this low.

* I learned that the 800-JR Cigar v. GoTo.com case quietly settled in October 2006.

Other write-ups of the panel:

* Barry Schwartz

* WebProNews wrote up the following talks: Mary Berk, Debra Wilcox

* RB Digital Rodeo (with a photo!)

* Navneet Kaushal

* DM News (misattributing a statement to me)

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Here are my notes for my brief remarks at the panel. My main goal was to provide a contrarian view to all of the plainitff-oriented discussion that had taken place in the rest of the panel.

1. Don’t be duplicitous.

• Ex: if you collect third party data using robots, don’t complain if people bot your site

– Solution: for an aggregator, we used robot exclusion headers plus a generous API license

• Ex: if you don’t like third parties buying your trademarks as keywords, don’t buy theirs.

– Ex: Buying for the Home v. Humble Abode. BFTH sued HB for buying its TMs as keywords (among other things). HB countersued because BFTH bought its keywords (and some other reasons). Parties settled with a $10,000 check going from BFTH to HB. Whoops!

2. Invest in IP protection/enforcement wisely.

• If you see an infringement, DON’T FREAK OUT

– If a two-bit splog uses snippets of your content, so what?

– Never assume anything, but preserve evidence

• Dollars invested in protection/enforcement instead can be invested in buying more marketing. Which is the better investment?

– Ex: 800-JR CIGAR v. GoTo.com over GoTo’s sale of TMs as keywords. 800-JR CIGAR litigated this case 6+ years at a cost of hundreds of thousands of dollars in lawyer fees. GoTo’s gross revenues from the sale of the keywords? $345! Can you imagine how much better they would have been pouring their litigation costs into proactive marketing?

– A lawsuit can get you into a worse position than you started. Ex: 512(f), anti-SLAPP, Rule 11 sanctions (KinderStart), American Blinds sued Google and ended up losing some of its trademarks.

• If you think a problem warrants enforcement, plan on using extra-judicial options to maximum extent possible (DMCA, search engine trademark policies)

• If you want to enforce your copyrights:

– register within 3 months of first publication to be eligible for statutory damages. At Epinions, timely copyright registration was difference between a check and being blown off

– Be very careful with Creative Commons licenses—they are a trap for the unwary

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