Is A “Review” Using Your Trademark To Steer Customers to Competitors?

The moral of this story is: search your business names and trademarks often. Check the ads on the results page. They may use your name and “reviews” to drive potential customers to your competitors.

Luring customers with competitor’s names and trademarks began early on the internet. The first wave used competitor trademarks as metatags to get the attention of search engine web crawlers. While legal scholars debated whether it was trademark infringement, unhappy companies got federal courts to issue injunctions against using their names as metatags as early as 1997.

AdWord advertising could have been the next wave if Google had looser rules. But they did not allow you to buy competitor’s trademarks without the owner’s permission. Then Google decided people had become sophisticated enough to tell a trademark owner’s ad from one put up by a competitor, so they loosened up. They allowed you to buy your competitor’s trademark as an AdWord if it triggered an ad and links for your company only.

Naturally this produced another round of lawsuits. Wasn’t this trademark infringement? Over time the answer has mostly been “No.” 1-800 Contacts v. Lens.com is an example.

One legitimate reason to use competitor’s names and trademarks is comparative advertising. In its 1979 statement of policy, the Federal Trade Commission said comparative advertising “when truthful and non-deceptive, is a source of important information to consumers and assists them in making rational purchase decisions…” In 2009, Google embraced a broad version of that policy by permitting “a trademarked term to be used in the ad text of ads that appear to be submitted by …informational sites…” https://support.google.com/adwordspolicy/answer/186124

“Appear to be” and “informational sites” gave shelter to people willing to push the boundaries and use your trademarks to divert prospective customers. A new breed of ad sponsors developed who work for, but aren’t your competitors. They’re intermediaries that drive prospects to competitors with “reviews,” for a price.

They buy your trademark as an AdWord. Google won’t object to that. They create an ad with your trademark in its title or text. The ad shows on the first results page when the trademark is searched. The ad might say it’s a mistake to do business with any company they have not reviewed, or simply direct the shopper to “reviews.”

Links in the ad may go to “reviews” where other businesses in your field are highly recommended. There may be a little text and a lot of coupons and special deals. If there is a search feature and you enter your name, you may be amazed to find a “review” of your company. It could even have snippets from your own website as positive as any talk about you could be—if you read them.

But what stands out on the page is your supposed rating. If you are not paying to get prospects, your rating will probably be low despite text that says you’re the best. The percentage of people who use the search feature is probably small, but the highly recommended competitors need not be searched. They’re on the landing page. They pay to be there.

Shoppers looking for substantial information or real people reviews as in Angie’s List won’t be impressed. But less careful readers who respond to coupons, deals, and attention getting graphics may pick up the phone.

Posting false or deceptive reviews consumers think are genuine is called “astroturfing.” It can violate false advertising and deceptive practices laws. Last fall, New York attorney general Eric Schneiderman announced a settlement with 19 companies that paid as little as one dollar per fake review to freelance writers around the world and posted them on Yelp, Google Local, and CitySearch.

Depending on how much effort goes into making a review “appear to be” genuine on an “informational site,” it may be difficult to get Google to do anything about the ad. It will be more difficult to get attention from state attorney generals. They have a lot to do, and will not stop astroturfing by themselves.

If such ads are harming your business, you may stop them without a lawsuit if you can identify their source. A business making money from clicks and calls may be using your company name or trademark with dozens more to drive prospects to their paying customers. Their business plan may not include expensive litigation. But without searching yourself regularly, you won’t know you need to do something.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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