Fair use in trademarks: Dying by a thousand small cuts
Today I received a standard “AdWords Approval Status” email on behalf of one of our clients. This particular client offers a product that targets the general MySpace demographic (16-24 year olds). I was expecting to see a normal spelling error or punction error in one of the ads which is normal when you are dealing with thousands of different creatives. However, this time I was a little shocked.
A message like this is nothing new in adwords and many brands protect their trademarks in this way. Myspace is renowned for ruthlessly “protecting” it’s trademark by shutting down small “resource sites” and legitmate non-infringing content sites. However with this new “protection” literally thousands of independ[e]nt publishers are going to see reduced revenue from Google Adsense as they see less relevant ads on their “Myspace Sites”.
For example, the search term “Myspace Layouts” is one of the most searched for terms on all search engines. Many website owners make a living off providing MySpace Layouts and using Google Adwords (And in turn the adsense content network) to promote those sites.
The irony is extraordinary: Google, whose very business model is premised off fair use — both the trademark doctrine and the general concept of searches of non-proprietary content contained in verbal strings — is now so tired of defending lawsuits based on spurious claims of infringement by keyword advertising that it forbids any use of “trademarked” (ugh) terms or elements in MySpace advertising.
Prediction from Likelihood of Confusion: Google here is betting that it can take this tack because MySpace is so dominant. But watch it lose an important margin of business in the social networking website market to users / advertisers who don’t want to be handcuffed this way and who will find a host with fewer cross-sectional legal and strategic vulnerabilities (which of course is the price of success), or perhaps other complementary strengths, that will let people and consultants have more latitude with their ads.