Best of 2008: Which exit did we get off, again?

Posted on September 7, 2008.

Well, maybe we’ve been too hard on the Democrats here at LIKELIHOOD OF CONFUSION®.  Perhaps unlike the GOP, they’ve got good, progressive IP counsel out there, and maybe an Obama Administration will take a more realistic view of what you can and can’t do on the Internet.  At least we know they don’t have any hangups about “deceptive key word advertising” or “Internet traffic diversion,” the modern bugaboos of Internet trademark litigation.  Turns out they think those things are pretty keen!

10 Years of LIKELIHOOD OF CONFUSION®
10 Years of LIKELIHOOD OF CONFUSION®

Above is a screen shot (click for full size) of a search result you got if you searched Google for SARAH PALIN SPEECH on Saturday night — note the sponsored link on top, in color, that links to the Democratic Convention website, DemConvention.com:

The link tells Internet users they’re going to a page called DemCovention.com/RNC.  Wow, are they showing the Palin speech in order to get you to compare it critically to what the DNC has to offer?  It’s comparison shopping, right?  A modern-day Miracle on 34th Street!

Well, no.  Here’s what you actually get:

Yeah, no Sarah Palin.  At all.  (Here‘s the whole page.) You’d think they were afraid of her or something!

Well, what’s going on here?  Some kind of bait and switch, right?  (Does Google let people do that sort of thing?!)

You know, I’d heard about that young Palin woman and her fine speech, but having clicked this link and now looking at this somewhat older fellow with the spray-on hair, why, I think I like what I hear!

Maybe, but you must agree with what we have argued at LIKELIHOOD OF CONFUSION® (and in a courtroom or two) for years:  This is not a deceptive trade practice, it’s free speech and consumer choice!  Wait — even when there’s “no Sarah Palin” at all at the link?!  Well, actually… look: No one is going to confuse Sarah Palin with Joseph Biden.  And trademarks, after all, are about one thing only: LIKELIHOOD OF CONFUSION.

So no problem.  In any case, SARAH PALIN SPEECH isn’t a trademark, so analogies to the old “it’s like tricking people to get off the highway using a phony sign” rationale for “initial interest confusion” in trademark law go only so far.

Not actionable, in other words.  And as far as ethics go — well, you know, politics, bedfellows, The Prince, all that sort of thing.

This is a change, right?

UPDATE:  Speaking of change — picking up the traffic, obviously, the DNC has removed the ad.

Ron Coleman

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