Don’t Be Evil

It’s Google’s mantra, its guiding ethos. But recently, the ubiquitous search engine has come under fire for not living up to this standard in its sponsored advertising program. According to the World Trademark Review blog [note: you must register to view the post], Google knew that its use of trademarks in the text of sponsored links led to a high degree of confusion among Internet users in 2004. That was when Google altered its keyword advertising policy here in the U.S. to allow bidders to purchase trademarks as keywords.

Rosetta Stone has been engaged in an ongoing legal battle against Google over its AdWords program, and filed these redacted court documents as part of its appeal. In addition to pointing out Google’s knowledge of the confusion its program created, the documents also reveal that Google’s most senior trademark counsel could not distinguish between sponsored links that led to counterfeit products and those that led to legitimate goods. According to the documents, Rosetta Stone identified 190 instances of Google sponsored links promoting counterfeit Rosetta Stone products between September 2009 and March 2010.

2010 marks the tenth year of Google’s AdWords program. Both the program and the way Internet users interact with it have changed immensely in the six years between now and when Google conducted the 2004 study that revealed the high levels of user confusion that result from the presence of trademarks in sponsored ads. Regardless of the legality of selling trademarks as keywords, Google should consider conducting a new study to measure the degree to which consumers continue to be confused by its practice of including trademarks in the text of sponsored links.

Moreover, Google is in a unique position as arguably the largest and most widely used search engine to take a stance on the type of cybersquatting that aims to dupe Internet users into thinking the site is affiliated with a legitimate brand in order to sell counterfeit goods. By identifying and excluding sites that sell counterfeit goods from its search rankings, it could dramatically help to decrease the amount of revenue that legitimate businesses lose to counterfeiters, as well as the number of dissatisfied consumers in the online marketplace.

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