Question re: TMs in Google Adwords (Full Version)

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smcfarland -> Question re: TMs in Google Adwords (6/1/2004 22:20:51)

I have a vendor that has given me a verbal notice that in 24 hours he will contact Google to remove my ads.

I sell sunglasses from three different manufacturers. He is the original manufacturer, while the others improved, added or changed the designs and have patents and trademarks on their own products. His claim is that I am using the adwords to get people looking for his TM'ed products, and then they are seeing the others and purchasing. Usually, the people searching for the brand in particular, instead of a generic "baby sunglasses" are interested only in those sunglasses, and the adwords take the to the specific product they are in search of... so my question is, according to the TM service that Google offers, what must I do? I am pretty sure after tomorrow's conversation, I will no longer be reordering from their company as I have had other problems with fulfillment, etc. but I would like to get rid of inventory. I purchase $1500-$2000 per month (wholesale in cash) from them, so I think it is a bit nit picking, but my sister said I should be more irritated that this person is trying to dictate my business and products and beef up the other products I sell.

Am I reading correctly that all I need to do is revise the Google AdWords to read generically in order to avoid exclusion?

http://www.google.com/tm_complaint.html

Thanks in advance. (my impeding ulcer thanks you, too)



dpf -> RE: Question re: TMs in Google Adwords (6/2/2004 7:18:42)

well first of all. whatever advice we give you, you should also consider consulting an attorney.....
you said you sel from 3 different companies and he is the "original manufacturer" but then you mention ordering from him..im confused. do you purchase from this person/company to resell? If I buy tires wholesale from Goodyear, is it TM infringement that I advertise that I am selling Goodyear tires?

Also, was he clear in his letter as to exactly what word/expression he has a trademark on? You said you wont order from him but have an inventory you wish to dispose of. If I were in your shoes, I would consider doing this: I would write back (certified mail) - very nice and syrupy - explain your position as a wholesaler, no intention to intrude illegally blah blah and then ask him to prove that he indeed has trademark rights. That buys you time to dump his product..lol

Most of the action in this area (see American Blind) involves companies with trademark rights pressuring Google (or Overture) to stop selling their trademarked expression. Google has "deep pockets" - you dont.

Finally, yes their trademark (if they have one) will be a specific expression or word and you simply need to rearrange it but I wouldnt quiver over thier deadline if they havent proven ownership.

Keep u sposted on this!!!!!!!!!!!



smcfarland -> RE: Question re: TMs in Google Adwords (6/2/2004 9:17:12)

They have proven ownership. I buy their products wholesale and DISTRIBUTE to retailers as well as sell them to consumers. The owner is saying I am basically doing a bait and switch, when that is not the case, and to me, the modifications from each manufacturer make them very different products, but similar. I have 4 times the people looking for generic products vs. the brand name.



dpf -> RE: Question re: TMs in Google Adwords (6/2/2004 9:29:51)

interesting..but again i am not a lawyer..but an opinionated so-annd-so..lol
bait and switch is a scam you pull on your customers..the people you sel to..how is it bait and switch vis-a-vis who you buy from? i love denzel washingtons line from Philadelphia.."expalin it to my like im 4 years old"..so, as a four year old, let me see if i understand this.

1. they sell their product to you knowing that you will resell it, right?
2. In reselling their product, you advertise it as their product, right?

if that is true, unless you signed a purchase agreement with some restrictions, how can you be violating their trademark.

If I buy pepsi for pepsi cola corp, cant i advertise "pepsi"? of course i can. and if someone wants to buy the pesi for me and then add bird seed to it, so what? im not adding bird seed. im selling pepsi.



Mojo -> RE: Question re: TMs in Google Adwords (6/2/2004 10:20:25)

Google has a trademark policy. It can be found here:

http://www.google.com/tm_complaint.html

The meat of the article for US and Canada based trademark rights is (bold added by myself):

quote:

When we receive a complaint from a trademark owner, we will only investigate whether the advertisements at issue are using terms corresponding to the trademarked term in the advertisement's content. If they are, we will require the advertiser to remove the trademarked term from the content of the ad and prevent the advertiser from using the trademarked term in ad content in the future. Please note that we will not disable keywords in response to a trademark complaint. In addition, please note that any such investigation will only affect ads served on or by Google.


Basically, if you have a trademark in your ad itself - Google will remove your ad. If you are bidding on trademarks, but not using the mark in the ad and not misleading the consumer - Google will not remove the ad.



dpf -> RE: Question re: TMs in Google Adwords (6/2/2004 10:21:47)

mojo
what is your opinion of the comapny pressing her to stop instead of pressing google?



Mojo -> RE: Question re: TMs in Google Adwords (6/2/2004 10:31:47)

Oops, looks like I missed the link in the first posting...

quote:

what is your opinion of the comapny pressing her to stop instead of pressing google?


Google has stated that they prefer the trademark owner to go directly to the alleged violator. Summer needs to change her ads to reflect Googles policy... hopefully she will be OK. Although, even if Google refuses to drop the ad that does not mean the mark owner will not take other action against her.

Google is involved in more than one lawsuit by trademark owners over this issue. So, things could change quickly.



smcfarland -> RE: Question re: TMs in Google Adwords (6/2/2004 11:43:47)

I just don't get it... I am marketing their BRAND in order to sell their BRAND and if the people come to the site looking for the brand, they usually buy it. I will update my ads to reflect the verbiage, I just wanted to be sure all I needed to do was to change the ad to read :

[Generic] Sunglasses
Buy [generic] sunglasses
Intl shipping.

instead of :

[Brand] Sunglasses
Buy [brand ].
Intl Shipping.



Bmastvac -> RE: Question re: TMs in Google Adwords (6/2/2004 11:54:20)

Hi Summer,


I'm not a lawyer and this is not legal advice.


1. If I wanted to keep selling that brand. I would ask the company to tell me what I needed to change on my website so I could keep selling that brand.

2. Do you have a contract with this company?

If Yes.

Dealer/distributor agreements usually have a section regarding the verbiage of how you can use the trademarks of that company. Is there any thing in there about the internet? Most companies I deal with have a separate dealer/distributor agreement for the internet. Example which logos and or products you can advertise on the net, how products are displayed, pricing, ect..

Most of my dealer/distributor agreements have a repurchase clause where if the agreement is canceled (usually 30 days notice in writing) they will repurchase all or some of your inventory.

If it's in your favor would remind them of the contract.

3. Is this brand worth hiring a Trademark Copyright lawyer ?

If Yes. I would ask about fair use of trademarks.



dpf -> RE: Question re: TMs in Google Adwords (6/2/2004 12:32:16)

I dont get it either..they sel to you knowing you are a wholesaler???? so you are reselling thier brand..why cant you say what it is???? makes no sense... can you post the verbiage from their letter, summer?



dpf -> RE: Question re: TMs in Google Adwords (6/2/2004 12:34:25)

omg..all the time i spent on this post..lol..i didnt really get what you said..he gave you VERBAL notice.... big deal....but as mojo said, google will dump you if you have his trademark..sheesh what a jerk..so you stop buying from him..he wins?
you may have to drop the name from ad but not from your site!!!!!!!!!!!!!!!!



smcfarland -> RE: Question re: TMs in Google Adwords (6/2/2004 16:31:21)

He had also commented that he can control my pricing. I will just drop him after stock runs out. They just have a nice profit. I looked at google and I had two ads out of the over 100 I use that contained the brand name. I deleted them.



Mojo -> RE: Question re: TMs in Google Adwords (6/2/2004 22:53:54)

It is greed.

I was in a similar situation a little over a year ago. I used to sell health bracelets, a lot of them. I had a couple of well placed friends at the manufacturer so I knew what was going to happen. The company felt that anyone can sell on the internet (they had their own eComm site) and that if they wacked several of the top internet retailers that their site would pick up the slack.

Instead of selling to me for $70 per item, they felt they could drop me (and others) and sell straight to the consumer for $130. So they forced me out using the same tactic that Summer is facing.

quote:

He had also commented that he can control my pricing.

No he can't. Manufacturers can only suggest prices - they cannot force retailers to adhere to specific prices. Of course, they can just stop selling to you...



dpf -> RE: Question re: TMs in Google Adwords (6/4/2004 8:21:19)

quote:

No he can't. Manufacturers can only suggest prices - they cannot force retailers to adhere to specific prices. Of course, they can just stop selling to you...

exactly - price fixing is illegal under anti-trust legislation - big time. In fact, the mere threat to do so is a violation.



Richard Dudley -> RE: Question re: TMs in Google Adwords (6/8/2004 11:11:15)

"Price fixing" is when several manufacturers collude to keep prices at an artificially high (or low) level. Think OPEC. One manufacturer can insist all they want on what their products sell for. Anything other than a profitable and fair market price is just shooting yourself in the foot.

Mojo's right, though. If you decline to uphold their pricing, they can refuse to sell to you. There are a number of companies out there that keep their prices very high in order to build "exclusivity" of their brand (nearly all of the ones I know of are associated with women's accessories and clothing).

IMHO, this manufacturer is being a jerk. I regard actions such as these to be an indication he considers his products to be inferior to the competition. What he really needs to do is ammend any agreement with Articles of Presentation, where any time you list his products, you have to mention features A, B and C and a short explanation why this makes their products superior to the competition. Double bonus if they provide you with cut and paste text. We get some of this for our wedding accessories (see www.bloomeryweddings.com) and the holiday containers (no holidays right now, but you'll see them at www.bloomery.com).

My response in similar (but not exact) situations has always been something like "I think you're being unreasonable here. You and I could work constructively to enhance both of our brands and increase our profits accordingly. However, if it's easier and more profitable for me to pull your products from my site, that's what I'll do. Your choice. Think it over. Keep in mind I sell a lot of your products." Few people who try and bully their distributors/retailers have accurate sales figures anyway, and ones that have accurate sales figures aren't typically bullies.

One excellent book I turn to first to decide whether to fight or capitulate is the "Gigalaw Guide to Internet Law". Go to www.gigalaw.com and click the link on the right. It's not a lawyer replacement, but it can save a few hundred bucks in decision making fees. It's very readable, and very informative.



Richard Dudley -> RE: Question re: TMs in Google Adwords (6/8/2004 19:32:51)

I had an idea on the way home today. How good are your sales figures? Can you correlate click-throughs on a particular ad word to particular sales? Ideally, you could show this mfgr that not only do people who click through on the disputed ad words buy his shades, people who click through on the generic ad words buy his shades. You could show his argument to be total BS, and that puts you in the driver's seat for what happens next.

If the data show otherwise, keep them under your hat, and see if you can work something else out.



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