Re:What if performance advertising is just an analytics scam?
by verve_rat on Wednesday October 13, 2021 @04:16PM
(#28857113)
It feels like it is close (but not really) to a trademark violation. If I search for "A" and get a screen full of results for "B", if I need to scroll to even see mentions of "A", then that feels like it is really close to "passing off". I could see an argument for saying that this "passing off" causes customer confusion that requires trademark enforcement.
I realise that would probably be an impossible argument to win under current law (IANAL), but it _feels_ so very close.
Re:What if performance advertising is just an analytics scam?
by GeneralMayhem on Wednesday October 13, 2021 @10:48PM
(#28860003)
US case law is extremely clear that bidding on and running ads on trademarked keywords is not a trademark violation, so long as you aren't misrepresenting that the replacement is the trademarked thing; see e.g. https://www.americanbar.org/groups/litigation/committees/bus....
I do wish there were some regulation such that if a user is searching for a trademarked or copyrighted term, that the best organic search result for that term should be required to show up first. I'm fine with showing competitor ads, but I don't think they should be able to show up above the trademark owner's ads.