In fifteen
minutes, that little Gecko could save you hundreds on your
car insurance, but he might cost Google tens of millions in
click revenue. I’m sure somewhere in Google’s graphic design
department – the one that does all those cute logos –
they’ve created some for the Gecko. Too bad we won’t get to
see them. Despite Geico’s cute and personality rich mascot,
we should have known that a company whose name stands for
Government Employees Insurance would feel the need to sue
Google and Overture. For those without the context, the suit
not only wants them to cease and desist, it will also seek
damages and potentially open the way for others to follow.
The end result could spell the end of being able to bid on
other companies’ marks.
https://www.lynxtrack.com/signup.php
To understand what the fuss is about, go to Google, type in
“failure” and hit “I’m Feeling Lucky.” Once you’ve done that
and had a good laugh, hit the back button and type in
“Geico” or “Nationwide” and chances are you will see
sponsored links for insurance products and services that are
not directly associated with and originating from those
companies. As is the case with the contentious contextual
marketing, so too here do you have direct competition on
something that companies feel should not. A company like
Geico’s objections are understandable. I wouldn’t like
knowing that my competitor can go to Google bid on my
trademark and potentially take users that were, in their
minds, looking for the company they typed in.
Does the practice of allowing
other companies to bid on one’s company trademark create
confusion, dilute the brand, and/or promote unfair
competition? We could spend a lot of time debating this.
What interests me more though than the lawsuit, is a related
phenomenon from which this article gets its name. Only
in search, it seems, do you have a company potentially
competing with itself. Type in a search for “running shoes”
on Google, and most likely you’ll see a premier sponsored
link placement for roadrunnersports.com. On the regular
sponsored links section, to the right, you should see
roadrunnersports.com again, except this time with an “aff”
in the description. Are the main site and the affiliate in
competition? Is it a benefit to have the affiliate there as
they at least take up a slot from the competition? Hard to
say – that’s why we call it cooptition.
Do the same thing, except this
time type “Nike” instead of “running shoes.” Here, unlike
the case with running shoes, you will find authorized
distributors of Nike along with affiliates of these sites.
Nike is a tough example because almost all their marketing
goes towards the building of their brand so that when you
enter a store that sells shoes, you will want to buy Nikes.
Unlike our earlier example with roadrunnershoes.com, Nike
doesn’t spend money trying to get people to its store. A
search for “Niketown” however brings up a case where Nike
might feel the same way Geico does. An ad for “Discount
Niketown” appears and leads to an eBay affiliate. The link
though does not lie; clicking on it takes you to a page
where you can buy Niketown gear. Confusing – maybe. Diluting
the brand – possibly. What a user really wanted – stranger
things have happened.
When it comes to cooptition,
and as is the case with bidding, we believe there are two
main types. The first type I label brand cooptition where an
affiliate bids on words that represent that company’s mark.
The second I call market cooptition, and it describes
scenarios where affiliates bid on terms on which the company
itself most likely bids, these relate to the broad category
based terms and not just very specific terms. I think it
safe to say that market cooption represents more of a
potential win for the brand. The case is less clear for
brand cooption. Were I a company like Countrywide, I would
most likely consider an affiliate bidding on the term
“Countrywide” the lesser evil when compared to having a
competitor bid there. These same affiliates are also most
likely bidding on their competitors’ terms too, so things
could be worse. Having the affiliate next to you for a term
that is your mark must cause some level of confusion in the
average person. Praise to Google though for not only
starting off leniently by allowing affiliates but also by
having the wherewithal to insure they put “aff.”
From my limited legal
perspective the online advertising world is still new, and
as I feel we showed from the examples above, the situation
is anything but cut and dry. That no direct parallel exists for
the examples above in the offline world makes it even less
clear. I tend to favor letting the companies and the
engines solve it though. For example, a company with proof
of mark can specify what it allows – market cooption, brand
cooption, competition. The engines could institute a first
right of refusal policy for certain terms as well. Say a
company would like to bid on a term that its affiliate bids
on, it can specify to have the affiliate removed from that
term if it didn’t want any form of cooption. Some agreed
upon standards could potentially reduce future lawsuits and
conflicts. The consumer wins when a certain level of
competition exists. But companies should and do have a right
to protect the brand they worked hard to create. I hope that
whatever the right balance is, companies and consumers will
benefit and not just the lawyers.
