The purchasing of branded or trademarked keywords by an entity other than the owner of the keywords in a paid advertising medium is a practice that commonly occurs. The extent to which it occurs is impossible to know. But one can look at the legal landscape and get some idea of the pervasiveness of the practice. The best indicator of its prevalence is that Google has been vigorously defending a number of trademark suits over the past five years that stem from its Adword product.
Google had proven successful in a majority of the suits but last year Google was delivered a bit of a setback in the case of Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. April 3, 2009). There the Second Circuit reversed the lower court and said that Rescuecom properly alleged that Google's keyword ad practices constituted a "use in commerce". Given the fact that Google is fighting so tenaciously the lawsuits filed against it one could assume that the practice is widespread, and Google is making considerable amount of money from it. The Rescuecom Corp, ruling may have opened the door for many other suits against Google, and revivified others that were "on the... Read more
Archive for Garth Snider 
Spam Litigation: A Guide for E-mail Marketers
Spam litigation—Just the thought of it gives many an e-mail marketer dyspepsia. Not only does an e-mail marketer need to be conversant in the standards set forth in the CAN-SPAM Act, but most states have anti-spam statutes as well. But just how concerned should the e-mail marketing community be about the threat of spam litigation? The short answer is that regardless of the statute, be it federal or state, if one is knowingly trying to trick someone with an e-mail by any sort of artifice, then that person probably needs to be worried.
But if an e-mail marketer abides by the fairly straight-forward rules set forth in the Act, then he is likely to keep the "feds" (primarily the FTC and/or the Justice Department) off his back. As to the state anti-spam statutes, many of these statues are simply restatements of the CAN- SPAM Act. But more than a few go beyond the rules set by Congress in the CAN- SPAM Act and in doing so impose additional burdens on e-mail marketers. With a federal statute and no less than 37 state statutes, how should a responsible e-mail marketer approach his job?
The answer revolves around who has the right to bring... Read more
Why
A popular criticism of vertical lead generation sites ("VLGS") is that end-users have the ability to request information on multiple concepts, thus diluting the attention available for any one concept. This in turn, or so the argument runs, makes it more difficult for any given advertiser on the site ("Concept") to convince the end-user to pick its product over the others for which information was requested. The problem with the argument is not in its merit, but in its mistaken simplicity and its lack of grounding in reality. A VLGS is nothing more than an online information directory. Since the scope and reach of a directory is a function of the amount of revenue the directory can generate, it is unrealistic to expect that a directory will limit the interest in, and therefore the information provided by, any one Concept. A VLGS, like a directory, cannot operate efficiently if the number of Concepts for which information can be requested is limited. Both VLGS and directories are dependent upon generating a deep interest across a broad range of Concepts. Limiting the number of inquiries that can be made by one end-user degrades the efficiency of the VLGS business model, and will... Read more
The Evolution of the Lead Generation Portal
Almost a decade has passed since the advent of the vertical lead generation portal. Since that time, web sites that generate sales leads have popped up in countless verticals across the web. Many have come; many have gone. The ones that remain and thrive know that diversity is the hallmark to success. The key to a successful lead generation campaign from the perspective of both the advertiser and lead generation web site (also known as a "portal" or "web portal") is generating leads through as many paths as possible. When I say path, I refer to the source by which the lead was generated. The most common paths are organic or free search engine traffic, pay per click, e-mail campaigns, co-branded advertising, and display advertising.
The dirty little secret that most lead portals do not want to disclose is that the paths do not provide consistently "good" leads. Some paths produce great leads for a while but then go dry. Some paths consistently produce a lot of leads, but with consistently poor quality. The process of lead generation is part art, part science. The best lead generation portals employ a large, dedicated, and experienced staff. This is necessary, as it takes that... Read more
