AXA sues Google over AdWords

Da Fokka writes "Insurance company AXA is suing Google in a french court because a search for 'AXA' results in links to their competitors. A similar claim was initially awarded but successfully appealed by Google. If this claim is successful, this could be quite a setback for Google's business model."

Seems they may loose this one

The last appeal (better described in an alternate story [weblogsinc.com] ) was overturned because all of the words involved were dictionary words, and that it was unrealistic to expect a trademark search for every AdWords sale.

However, there is no doubt that AXA isn't found in most dictionaries, certainly not English or French - so it would seem they actually have a good chance of loosing this lawsuit.

Re:Seems they may loose this one

The other word they're suing for is "direct insurance" - according to this slightly more informative story from AP [theage.com.au] out on the wires now.

What really bugs me is that AXA did not pay Google to be listed. AXA can easily deny, via robots.txt, google's ability to visit their site. AXA is getting tons of free publicity via exposure on google. What right does it have to deny clearly demarcated ads on the very same site?

Re:Seems they may loose this one

Oops, that was direct assurance, not insurance.

Re:Seems they may lose this one

About Google

Google posts paid advertising links (on the sides and above normal search results) always using a different background color, and specifically noting that those results are "sponsored links".

The fact that Google specifically separates sponsored links from it's normal search results is one of the reasons why Google has as high a popularity as it does.

About this lawsuit The AXA company is suing Google for selling both the trademarked term, "Direct Assurance" and the companies non-dictionary name, "AXA".

Google sold the non-dictionary term AXA to competitors of AXA. This has nothing to do with standard search results, and everything to do with advertising. If AXA were a dictionary word in English or French then there's a decent chance that Google would win the case (like the last case).

While I personally feel there is no validity to a lawsuit over selling a trademarked term made of 'dictionary' words, I see potential for liability where you are selling terms that are not otherwise found in the dictionary.

Re:Seems they may loose this one

Well, I typed "AXA" into Google and the first ten items were all related to AXA Insurance and the only ad was for a financial company's web page discussing AXA.
Unless there has been a quick change by Google, my opinion is that AXA is FoS!
Having the words "insurance" or "assurance" anywhere in one's search should trigger any insurance companies ads.

Re:Seems they may loose this one

Yes, there has been a quick change by Google. However, I don't believe that the US google service was in question.

Adwords is different for each [google.com] region [google.fr].

Re:Seems they may loose this one

Is it possible that we've slashdotted the ad inventory for these AXA competitors thus effectively removing their ads from Google?

Re:Seems they may loose this one

axa is found in Ebonics dictionaries. Using it in context - "lemme axa question, dawg."

Re:Seems they may loose this one

What is happening here is that a competitor is "buying" an advert imprint on Google when the word "axa" is in the search criteria. Its pretty much the same thing as a billboard saying "Get your Coca Cola here" with an arrow down to a Pepsi fridge, or a table with your home-made lemonade.

This is, in fact, exactly what trademark laws are meant to prevent: the abuse of your good name by competitors, detractors and freeloaders.

Trademarks are, in fact, magic words (or phrases) that can't be used in many ways without permission. You can talk about Pepsi, refer to Pepsi, satirize Pepsi, but you can't use the name Pepsi to advertise your business or product, or claim to be Pepsi-compliant or Pepsi-approved, or basically abuse the (presumably) good reputation of Pepsi to bring gain to yourself or harm to the trademark holder.

What is being described here is a despicable business practice, and does not deserve the hand of support its getting from Slashdot. Trademarks and branding are important tools for product differentiation in mature markets, which is why they are strongly protected in capatalist economies.

That said, the guilty parties here are those that register trademarks (to which they have no right) as AdWords; not Google. This court action is comparable to holding a newspaper responsible because an advertiser illegally used a trademark, or holding a supermarket responsible for the illegal use of a trademark on its community advertising board.

The correct solution is to apply existing laws to a "new" domain. Google should, on request from someone who can offer prima facae proof that they are the legal trademark holder, supply the full contact details of all parties who have either currently or previously registered AdWords for that trademark. The trademark holder can then go after the infringer(s) directly. It should not be possible to request or get an injunction to force Google to remove the AdWord, for the legal reasons given below.

Unfortunately many countries are applying their only flavours of national and international law to the problem. This becomes particularly complicated in the case of trademarks, which typically are national in extent (although many countries have specific policies for "global" or "well known" international brands), and are also limited to a single domain.

Thus a single country could have two registered trademarks "XYZ", one for a soft drink and another for a range of security doors. Another country could also have a trademark "XYZ" for a soft drink, that is in no way related to the "XYZ" of the first country. This happens frequently, and must be absolute hell for companies like Google.

Re:Seems they may loose this one

If someone comes into your store and asks for a Pepsi you can say "I don't sell Pepsi, would you like a Coke?" And in fact, what else could you do? Just say no without offering any alternatives? Would it be allowable to offer a beer, but not a Coke?

Anyways, all Google's ad was doing was suggesting alternatives, not misrepresenting them as the trademark owner. Saying "Yeah, I know you want that company, but have you considered this other company?" Nothing illegal because there's no misrepresentation. (Not inherently, that would depend on if the company in the ad pretended to be AXA, not simply that they wanted to be listed as an alternative.)

Had they silently redirected your request from Coke to Pepsi, bringing the wrong beverage, that would be a trademark violation.

Re:Seems they may loose this one

It is more like going into a store, asking for a Pepsi, and then getting handed a Coke with a Pepsi label on it.

No, not at all.

If you clicked on a link claiming to lead to this AXA insurance company, but instead was taken to the website of AXA's competitor, then your analogy would be appropriate.

This is however NOT what's happening here.

1. You search for "AXA", and get AXA's website as a search result.

2. Next to the list of search results, you ALSO get an ad from a company in the same line of business, that does NOT claim to be affiliated with AXA in any way, and it's clearly separated from the search results, preceded by a text saying "Sponsored link".

Re:Seems they may loose this one

Trademarks and branding are important tools for product differentiation in mature markets, which is why they are strongly protected in capatalist economies.

While what you have said about trademarks is true, what has all of that got to do with Google? Google is a search engine, it is a privately published directory that is publicly accessible. At the end of the day, it is just like a magazine.

For example, pick up a PC magazine and you'll find that there are instances where there are articles published about product X and right on the next page is a full page advert for product X's competitor. Just like how you might find an Epson advert right after an article on HP printers.

Yet i don't see companies suing over the very standard practice of placing ad's based on a publications editorial calender.

Clearly it's the same thing no? You may argue that in this case users specifically searched for AXA and got to see their competitors also, but isn't the case the same when someone purposely flips the page to look at an article about HP printers and sees an Epson Ad beside it?

Whats happening here is not somebody telling you to get Coca-Cola out of a Pepsi ice box, but rather more like Pepsi paying for a billboard right next to every Coca-Cola billboard. Ironic? Maybe, but definitely not wrong.

Obvious question..

Why can't they just sue the company who's purchasing the ad, instead of suing Google?

Re:Obvious question..

Why can't they just sue the company who's purchasing the ad, instead of suing Google?

This is a common problem, and I'm sure the source of most of Google's legal threats.

Once Google is informed that an AdWord violates a trademark (or whatever), they become liable to prosecution. The way Google usually responds is by immediately pulling the ad.

I can't imagine why Google wouldn't pull the ad, the money they make on them can't be worth the legal battle.

Also, Google has deep pockets, and there are plenty of litigious assholes out there...

Re:Leave it to a French Court

It's like suing a library because I went to look for say McDonalds and found that Burger King also sells hamburgers.

A better analogy is that you opened the phone book's white pages to look up McDonald's, and saw a Burger King ad right next to the McDonald's listing.

In the Yellow Pages, a commercial directory, you clearly expect to find businesses advertised by category. In the White Pages, customers are listed by name instead. AXA is trying to say that Google should limit itself to being a white pages index of the web, which is rubbish.

Re:Leave it to a French Court

That's exactly what the "yellow pages" are for. And AdWords is a lot like the yellow pages in that they show you businesses related to what you're searching for.

AXA should be suing their competitor, not Google. What their competitor did is tantamount to hanging an advertisement for their business under AXA's streetside sign.

Better analogy yet

A better analogy is that you opened the phone book's white pages to look up McDonald's, and saw a Burger King ad right next to the McDonald's listing.

I've RTFA but frankly, there's not much information in there. Still, I guess that the reason why Axa sued is that the ad links mentioned the brand name "AXA". So maybe the proper analogy would be that you opened the white pages to look for McDonald's and see an ad for "McDonald's something" with the address and phone# of a BK.

Still not sure that this would justify a lawsuit but at least it's not that clear-cut.

Ok smartypants..

I think the lawyers responsible for such litigation should be required by the judge to supply (for free to the public) a list of every trademarked word... and keep it updated in perpetuity, oh.. and have their fingernails pulled off for being such a pest.

The proper term is....

"Freedom" court. Please use the language that our lofty senators appointed for us.

I don't like this precedent...

If search engines become responsible for the accuracy of their searches, then that's going to become risky business, especially when everyone's always just a little lower in the rankings than they'd like to be.

Worse for Google is that an insurance company is going to have lots of money and can easily afford to mount a very strong case against them. Hopefully, Google will have some luck, but it sounds like the similar case won't stand to help them much.
-N

Responsibility?

I'm trying to figure out how a court can actually hold Google RESPONSIBLE for advertisement for a business entity.

Google's primary purpose is INFORMATION, not the aforementioned advertisement.

If I'm looking for something to purchase, I'm generally more concerned with price & availability than who I buy FROM. It's in this area that Google shines, offering a plethora of various places to buy/rent from.

I would think this is an excellent opportunity for Google to make the distinction between their ACTUAL business plan and their PERCIEVED business plan.

Think about it, just because you've coined some obscure acronym for yourself or your business, does that mean it's Google's responsibility to insure that people find you during their search? Wow, nice way to shrink that ad budget.

Re:Responsibility?

I think you've got this wrong. They are suing because Google is selling their name as an Adword, not that their competitor comes up in the search portion of the page. It seems like there could be a good case that the competitor (and Google) is making money by trading on their good name. I'm not saying that I agree, but I don't think it is an open-and-shut case, especially when the name isn't a common english or french word.

Re:Responsibility?

Google's primary purpose is INFORMATION, not the aforementioned advertisement.

Absolutely not. Google is a profit-seeking company, and as a commercial entity Google's primary purpose is the advert, not the information. The information is the lure to get you to see the advert.

Cheers,
Ian

Re:Responsibility?

But this isn't about the general search results; this is about what comes up in the "Sponsored Links". Google controls what shows up there, or more accurately, controls the keywords (Adwords) that triggers the results there.

Being that these results are generated by Google, it's Google's responsibility to make sure that none of their sponsors are abusing other companies' trademarks.

This reminds me...

of people trying to sue Google for trashing their pagerank after they subscribed to a link farm.

Nothing good can come of this sort of lawsuit. Google and other search engines should be free to have their results the way the Internet says.

The Scientology nuts are complaining that a search for "scientology" also results in anti-scientology sites. Should they be awarded damages too?

I don't think so.

Basis of the Suit

They said that Google is diluting the copyright because customers might mistaken the adverstised services as being associated with AXA. (Yes, it's in an ad box and labeled as such, but that makes sense and has no place in the law.) People have sued pop-ups on the same grounds; an ad that popped up upon a visit to a website might seem connected to that website even though it is not. Therefore, this claim is not stupid outright but in this case it seems a little weak.

Next up...

"Search engine company Google is suing themselves"

"If you Google on 'A9', you get a listing for one of our competitors," said a company spokesperson. "It's an outrage!"

what about the yellow pages

when i go through the big phat yellow pages directory, looking for the "Blud E. Good Plumbing" phone number, i am subjected to other adverts of rival plumbing services. The Yellow pages are profiting from this, so why shouldn't google?

Re:If google loses in court

If google loses in court they should refuse to index AXA _at all

Why wait until they lose? yank their cord now and give them a sense of reality.

Who says google has to list anybody?

Bah, this is nuts.

A quick search for 'Linux' [google.ca] brings up the following #1 sponsored link:

Linux News
Why is Windows cheaper than Linux?
Get all the facts Now!
www.microsoft.ca/getthefacts

So can Linus sue now? Seriously, I hope the courts don't rule against Google. It's not like the nasty ads that were being placed over other ads on company websites, it's just a sponsored link.

Sue Amazon!

People who bought this book also bought.... [amazon.com]

Country oriented

In the forced localized version of Google here in Australia, all I see is a) AXA official web sites b) An ad for a local mortgage firm. No compeditors. Obviously the validility of this lawsuit varies from country to country.

In the interests of full disclosure: I am an AXA Australia shareholder.

I searched on Google...

...and on the sponsored ads, every one of them had 'AXA' in the title, but didn't seem to be related to the company itself. Are sponsored links different from regular links in that the companies give Google the title that'll show up? It seems like the only way to actually solve this may be to force Google to check for trademarks in titles, but that is a LOT of work, and probably is only feasible if a company assertively places its name in "the list."

They don't have a case... and they know it

Let's take a step back for just a second. Std Disclaimer: IANAL, but I play one on /.

If "AXA" wins, this means that using its name is forbidden, unless the company gives its approval beforehand. This imposes an undue restriction on freedom of speech, since Google is certainly not the only forum in which AXA is discussed and/or searched. Will this company sue, let's say, every newspapers or forums that discuss insurance companies and/or policies? Unlikely.

A few years ago, AXA may have argue its case by saying that it was 'undue competition', since France had laws prohibiting comparative commercials (Product A is better than product B because of...). But this is not the case anymore and comparative commercials are now legal in France.

Google may also argue that AdWords do not 'target' AXA, since -- AFAIK -- they are generated automatically. AXA is an insurance company (this is public knowledge). Therefore, a Google search on, say 'life insurance' would return pretty much the same AdWords results.

Therefore, I think AXA does not have a case. I also believe they know it, but that some over-zealous jerk in its Legal Dept decided to press the case anyway, just to make a point. They are just throwing good money out the window.

This may seem surprising, but French courts have proven in the past to be remarkably reasonable when it came to the Internet (Yahoo! 'nazi' case aside) and the previous decision is a case in point, since AXA lost it.

I fully expect Google to fight this all the way to the French Supreme Court (Cour de Cassation), if need be. And I expect them to win.

Just my 0.02 Euros...

This happened to us, but you don't need to sue

I think this was pretty standard practice at one point, to put your competitors names as triggers for your Adword advert. A competitor tried to do that to us, which we thought was a bit scummy but we didn't have the resources to do anything about it. Someone pointed us at Google's compaints procedure: we wrote to them, and after a long delay the offending advert was taken down. I found another article [eweek.com] which implies that they will be reversing this policy and allowing you to bid on anybody's name and trademark, and take down adverts only where a particular jurisdiction makes it awkward for them (i.e. outside of US and Canada). This sucks of course but TBH I'm not sure said competitor would have got many hits from our name at the time. Now I suspect they might but this time we'd be able to do something about it :-)

Search engine doing what it should...

I don't see any problem. The Google search engine is doing exactly as it should - it is finding matching/close references within its website database. It just makes sense that the engine will find competitors/similar sites. A lawsuit over a service that is performing as it should should be dismissed immediately (with a warning to the industry not to try this stunt again).

Hello? Yellow Pages?!

Open up the yellow page phone book you have next to your phone. Look up any topic like "lawyers" and you'll find not one lawyer but a whole gaggle. Now AXA would have you believe this is wrong. When you open up the phone book looking around for something and you stumble across AXA it should be the only available financial institution? Is this what AXA really believes?

Why are companies afraid of competition? Because it makes them work a little bit harder? Shesh. Instead of suing Google who about count this as a blessing (aka free advertising) and get your marketing people to figure out away to capture the attention of people who when given a choice would want to choose AXA?

Google holds no responsibility to the public

What incentive does Google have to produce "accurate" results? Merely financial. The fact that google produces what's considered to be dependable search results given some search terms seems totally irrelevant. Google is beholden only to its investors (and it's still privately held, so the list probably isn't enormous). Google's ranking algorithm(s) are susceptible to abuse, and perhaps a competitor of AXA has done just so. But I wouldn't care if Google intentionally produced AXA's competitors as results for searches on "AXA". What right has anyone to demand that Google produce more accurate results (presumes that searching for "AXA" means that AXA's website is the desired result)?

Google's search engine is too good

Ironically, Google may be in trouble because their search engine is too good. In another search engine, if you search for "AXA" you expect to get a bunch of useless sites. When you search in Google, you expect to get useful information. Therefore if someone does a search for AXA in Google, they fully expect that their results are related to AXA. If Google searches were bad, then there would be no confusion because users would expect to get irrelevant results, and there wouldn't be much of a case.

Re:Google could fix this easily.

We surrender! We drop all our lawsuits, please relist us!