I'll be speaking this week at the Click Quality Counsel on the law of PPC advertising. We'll post the Powerpoint on the Dozier Internet Law site shortly. At a high level, I go through the primary legal issues (trademark, domain name and false advertising) involved with a PPC ad. The four issues involve the use of a competitor's trademark in a search term, ad title, ad description, and url presented in the ad. The lesson to take away is that this is an unsettled area of law for the most part, and each situation turns on the unique facts involved and the way the ad is viewed in its totality to the consumer. There were at least four lawsuits filed in the past 45 days between businesses, but most litigants are avoiding naming Google as a "contributory infringement" defendant. When you go after Google, expect not only to have to incur huge legal expenses but also expect that their good lawyer friends over at Public Citizen will once again come in and file briefs supporting Google's position that there is no contributory trademark infringement liability, a dubious position in my opinion. As an aside, it looks to me like Public Citizen and Google's in-house IP counsel are trading legal support back and forth...kind of a "you scratch our back and we will scratch yours". It will be interesting to see how long this honeymoon of mutual admiration and support lasts since there are clearly some issues they should clash on relating to behavioral marketing and data.
Dozier Internet Law represents businesses involved in PPC disputes and we assist businesses in understanding the risks so good business decisions can be made. A quality risk assessment involves understanding a number of factors that go beyond the law in a strict sense. I think of it as a pragmatist's perspective. I think the lesson learned, and you will see this in the slideshow going up on the Dozier Internet Law site, is to be very careful in the PPC world. Sure, the odds are low you will get sued. But when you do...you are paying expensive IP trial lawyers, and using expensive expert witnesses, in an expensive Federal court, dealing with an evolving, complex area of law. That's a recipe for disaster for the small business-a recipe that almost always carries with it individual or personal liability for the owners of the business even if you have a corporation. Ouch.
