Oct
05
2011

Commercial or Informational? – Your Choice

In this particular case, Office Depot has sued Staples, said that Staples, related words, which are Office Depot brand, resulting in a Staples ad out on searches for “Viking”, which is a subsidiary of Office Depot. Office Depot claims trademark infringement, false advertising, unfair competition and deceptive trade practices.

So what’s going on here? Whether a trademark means that then “own” that word or phrase that nobody else can use it forever? Can the “brand police” stop using the words “Office Depot”, unless we’re talking about them specifically, including cancel any claim that they are a shop, such as Office Depot? “

Trademark Infringement

Let’s look at claims that the Office Depot account against Staples. First in line is trademark infringement. Trademark law is carved by our general ability to use words in any way we choose (in the U.S. anyway) to protect consumers from inferior products, specifying the source of a product or service so that you can be sure that an “Office Depot Product” is actually made by Office Depot, and not by others. It is relatively clear in this case the user will be confused in the least by clicking on an ad shop which does not claim to be Office Depot or Office Depot in the domain name. If I were a judge I’d throw that one on its nose.

False Advertising

What about false advertising? Well, as Staples did not claim to be anything but Staples, how could they be false advertising? Ads that are created allegedly true. The only difference is that the mechanism by which advertising is displayed. This false advertising? Not in my opinion anyway. It may in fact be argued that use of the word competitor in the search engines have the benefit of consumers because it provides the user with far more choice then found otherwise.

Unfair competition

Unfair competition? Now, one possibility. Unfair competition laws are set to protect companies against other companies, not to protect consumers against the company and trade mark law and false advertising are designed to do. Unfair competition activities grew by law for trademark infringement to prevent a trader from diverting patronage to a competitor by falsely representing that his goods are goods of the opponent. But wait a minute here; Staples not passing off their goods say they are actually products of Office Depot. Again, there is no likelihood of confusion or understanding regarding the source of the product. So that one does not work very well.

Deceptive trade practices

This leaves us with deceptive trade practices. So what are deceptive trade practices? FTC defines prohibited activities in a single Deceptive Trade Practices Act as:

1) passing off goods or services as those of another. Well, it looks a lot like unfair competition and trademark infringement.

2) Causes likelihood of confusion or uncertainty regarding the source or approval of goods or services, or affiliation with or certification by someone else. Is there a list of search implies approval, affiliation or certification? Not every user who has used a search engine for more than 15 minutes :-). Does not look like this one or seizures.

3) Uses deceptive representations or designations of geographic source of goods or services. No, I did not see any of that here.

4) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses or benefits they do not, or that a person has some sponsorship, approval or links that he or she does not. Office Depot does not claim anything for himself goods, only that they advertise by buying words of AdWords, which meet the Office Depot protected words. So do not work too.

5) Represents that goods are original or new when they are not.
6) Represents that goods or services to a particular standard, quality or class, or a particular style or model when they are not.
7) Disparages the goods, services or activities of others by false or misleading representations. If you think that just showing others disparage your goods, maybe it will fly, but not likely.

So what is the real point here?

So if such a cursory look to other lawyer shows large holes in relation to allegations of this lawsuit, why bring it? What’s the point?

It is very possible Office Depot has filed this suit to bring attention to the practice of competitors ensure that their ads are displayed along with their competitors in the hope that Congress takes the publishing and distribution of new laws or change existing laws prohibiting the practice . However, prohibiting the use of words competitor products or phrases in meta tags and programs such as AdWords will probably create a lot harder than it solves. As consumers use a search engine to find the best product, best prices or information on this or similar products to fulfill your current needs. This is of interest to consumers to provide as much information as possible so that consumers can make the best choice for that special circumstances the consumer.

The question boils down to a familiar – if the Internet is an essential market for information or for commercialization? If you want information, then everyone should be able to use any meta tags, AdWords, keywords, or text that they wish, as they are not in violation of the laws that protect consumers from poor quality or confusion about the source of a product or service. This would allow the constitutional right to “bash” special products, the use of parody, satire, or just memory products on your site and then sell AdWords to further promote your blog or whatever else you want to advertise. On the other hand, if you choose the marketing use of trademarks in meta tags for your website or AdWords will be prohibited necessarily limit the amount of easily accessible information on any subject, not only in terms of products or e- trade interests.

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