(UPDATED, revised). That’s what Bob Cox is reporting in this story in the Examiner; more here. Google said it would not run anti-MoveOn ads because they supposedly violated its trademark policy prohibiting the use of anyone’s trademarks in online advertising by a third party. But Google should know better. Courts have repeatedly held that such a “nominal” use is not a “trademark use” at all.
Bob interviewed me for the article. Here’s what I said (I’ve added some supporting links here):
Ronald Coleman . . . noted that, as a private company, Google has the right to treat different advertisers differently.
But he called Google's removal of the Collins ads "troubling." Coleman says that there is no such requirement under trademark law and that Google appears to be selectively enforcing its policy.
"In a recent ruling, the Ninth Circuit Court of Appeals rejected the notion that there is anything like a cause of action under the Lanham Act, the statu[t]e governing trademark law in the United States, for so-called â€˜trademark disparagement,' " Coleman said. The courts have also rejected the notion that the use of a trademark as a search term is a "legally cognizable use" as a trademark use under federal trademark law, he added. Coleman is also general counsel for the Media Bloggers Association.
Did I really say “troubling”? Gak. Truth is, this is an emerging area of law, and you can hardly blame Google for desiring a policy that keeps it out of Lanham Act lawsuits. They made a hard and fast rule, supposedly, though the background documentation makes it seem that Google has applied its policy selectively.
Selective application of the policy is “troubling,” yes, but what’s more important is that the Lanham Act has nothing to say when a trademark is being used by an “unauthorized third party” in connection with the assertion of political or ideological ideas. That is not a trademark use, and cannot be trademark infringement. Even if the trademark law did have something to say, the First Amendment would trump it. Judges are beginning to catch on to the idea that trademarks are not private licenses to censor, but they are catching on slowly.
Again: Google is a business. But let’s not be overly impressed when it makes its business decisions about content, political or otherwise, and calls this a “trademark policy.”
UPDATE: Discussed this topic on “Fox & Friends,” an early morning television program (sounds like a cartoon!) on Fox News, this morning.
UPDATE: Resolution, of a sort, discussed here.
Originally posted 2011-10-06 10:59:17. Republished by Blog Post Promoter