Presidential Campaigns Use Keyword Advertising in Ways that IP Owners Seek to Quash

by Paul Alan Levy

I have previously discussed the importance of keyword advertising as a source of exposure for comparative and critical advertising about corporations and their products, and warned about the efforts of the IP ownership bar to suppress such advertising in order to protect their clients against competition and criticism. 

The Washington Post carries a story this morning on the ways in which the Presidential campaigns are using keyword advertising to bring their campaign messages to the attention of the voters.  Among other things, the campaigns are buying ads keyed to each other's names.  If the IP owners had their way, these uses of keywords to run comparative advertising would all be illegal.  After all, the argument goes, the candidates have trademark rights in their own names, and using a trademark as a keyword to buy advertising for a competitor infringes the mark. 

Google has not acceded to this argument, but allows keyword advertising based on trademarks.  It has had to defend its right to allow such keyword advertising in many cases across the country.

But even Google allows the trademark holder to object to the use of the trademarked term in the keyword ad.  So, for example, if Obama objects, McCain would not be allowed to buy a keyword ad based on the search term "Obama health plan" and run a keyword ad asking the question, "Would Obama's health plan cost you more?  Click here to find out."  Yet the inclusion of the trademark in the ad can actually reduce the risk of consumer confusion, by clearly communicating that the ad is a comparative or critical one. 

In this regard, the changes in IP takedown procedures that I proposed earlier today could help protect Google against liability for the contents of keyword advertising, and hence allow it to relax its rules against putting trademarks in the contents of the keyword ads.

In order to show how keyword advertising is being used by the Presidential campaigns, I ran test searches for the terms  “McCain Maverick”  and “Obama Muslim” – the latter example was mentioned by the Post article.

Both searches showed keyword advertising that would be forbidden altogether under the analysis advanced by the IP owner lawsuits against Google and others, and showing keyword advertising text that Google’s risk-averse policy on contents would allow the trademark owner to ban, no questions asked, but which are plainly permissible comparative advertising that would plainly be protected as fair use. 

For example, the search results for the terms “McCain maverick” include paid advertising that leads to sites promoting anti-McCain messages.  Both make plainly permissible fair use of the McCain name, but the IP owner position on keyword advertising would forbid either to be promoted through purchase of that keyword, and Google’s policy on the use of marks in the text of keyword ads would allow McCain to object

The first paid ad is from CafePress.com, for a page where Internet users can find pro- and anti-McCain Tshirts for sale:

McCain: Maverick or No?
Pro-McCain and Anti-McCain gear!
T-shirts, stickers, buttons and more
www.CafePress.com

The second ad is from the Obama campaign, and takes the viewer to  a page within the Obama site that shows an ad keyed on the “maverick” theme:

Is McCain a Maverick?
Nope
Learn More and Donate to Obama
barackobama.com

Similarly, the list of results for a search conducted for “Obama muslim”  includes a series of keyword ads that reflect the perfectly legitimate uses of a name for ads for sites that have legitimate relevance to that name.  The first and third paid results are from the Obama campaign, countering the rumor that Obama is a Muslim.  The second is from the very conservative journal Human Events, promoting a report that “exposes” Obama; the web site that one reaches from the ad provides the report free of charge to anyone who signs up for an email list. The anti-Obama advertisement contains language highly relevant to the search term, and the linked web page is also directly relevant, being stridently anti-Obama.  Both would be protected fair use, but the IP owners anti-keyword advertising campaign would forbid then, and Google’s policy on the content of keyword ads would allow Obama to prevent overt use of his name.  Internet users would be the poorer for it if either policy applied here The fourth paid result is for a  generic web page showing the campaign 2008 reporting of the New York Times. 

When I first checked these search terms this morning, as I was reading the paper over breakfast, the top two keyword ads were, respectively, from the McCain campaign and the Republican National Committee:

Obama Rhetoric vs Record
Are You Tired of Obama Rhetoric?
See The Truth on Obama's Record!
JohnMcCain.com/RhetoricvsRecord

and

Researching Barack Obama?
MeetBarackObama.com      Looking to Learn More About Barack Obama? Get The Facts Today!

Curiously, though, by the time I got to my office and tried to replicate that search for presentation as a link to this blog post, neither paid ad could be found. 

Inasmuch as Senator McCain has been at pains to avoid being associated with the promotion of this particular rumor, one wonders whether the grown-ups over at the McCain campaign were upset when they learned in their morning paper about these keyword buys by those lower down the totem pole.

Comments

[planetjeffy]

I am not sure what you are getting at here. The court has ruled that advertisers may use trademarked terms as keywords, but not in the ad copy if the owner of the trademark objects and contacts Google. Even if Google rejects your ad for use of trademarked terms, there are ways to get around this by using dynamic insertion or using the keyword in the url.

Otherwise, the advertiser could run the ad without the trademarked term and use the term "his" or "candidate" in place of the candidate's name. I think this is all moot, however. Candidates are not companies or products. There is no restriction on the use of their name in the midst of a campaign. I have yet to see any restriction on the use of the opposing candidates name in traditional media, so it would carry over to PPC. If anything, they are not running enough paid ads covering core issues and attack points - like iraq war, bill ayers, bailout, jeremiah wright, recession, george bush, racist, etc.

Would the use of paid ads for these keywords payoff in more votes? Analytics would quickly tell the advertiser quickly if they are wasting money. Obama's web campaign is quite sophisticated, but not heavy into paid search. He has picked his battles, however. Search for keating and you'll see an example of this. McCain seems to have tried to overcome his second rate web marketing by a heavier paid search load. Get used to it, this year's internet driven campaign is just the beginning.

[Riana Pfefferkorn]

planetjeffy, I think you are conflating several different phenomena. Yes, courts have uniformly held that use of a trademarked term in ad copy is a trademark use in commerce. But if a trademark owner gets its mark on Google's blacklist, then it doesn't matter whether the term is in a keyword list or in ad copy - Google won't let someone else use it. So keyword insertion wouldn't help; you couldn't bid on the keyword.

The Second Circuit's forthcoming decision in Rescuecom v. Google may clear up the legal uncertainties in trademarked keyword advertising, with more force than the conflicting decisions we have seen from district courts. Those who attended oral argument a few months back are not sanguine about Google's chances. But whatever way the case comes out, Google will modify its trademark policy accordingly. If Google wins and there is good language in the decision, you can expect Google to modify its trademark policy to be more permissive (but perhaps not too permissive - got to cater to those advertisers). However, fair use wasn't an issue in Rescuecom so Rescuecom likely will not help in that respect, and so far when nominative fair use has come up as a defense it's been rejected. So that will perhaps stay up in the air.

Paul, thanks for a fascinating post.

[Riana Pfefferkorn]

Oops - Paul has brought to my attention that keyword bids would be prevented only outside the U.S./Canada/UK/Ireland; keywords bids would be permitted, but use in the ad copy prohibited, in those countries. I apologize for the error.

[William Ligiu Ionescu]

Keyword advertising? Why does George W. Bush need handlers to have simple conversation with me? Why does any American president need handlers to have simple conversation with me? Because two paradigms exist, two structures, and dodging questions is dodging questions (two Americas; one, biologic, two, made of paper constitutions with hyperactive commerce clauses (hyperactive = nonconstitutional, extraconstitutional, same as your constitution (body) can survive hyperactivity so long only).

The constitutions were decoys to take the first hit rather than our constitution (body) taking the first hit. The price for freedom is vigilance. Kiss the constitution hello!

upperandlowercase.com