Should Google Be Prevented From Profiting From Cybersquatting?

February 1, 2009

As a result of a recent decision against Google in the USA, a new weapon should be considered by trademark owners like Microsoft in the battle against cybersquatters.  If misspellings or other versions of trademarks are registered as domain names by third parties who are earning click revenue from Google’s adsense program,  suing Google may be an option worth considering.

The adsense program effectively allows Google to profit from cybersquatting.  To understand why that is, it is worth taking a  look at how Google’s Adwords program works.

When a surfer searches for specific terms Google’s search results along the top and on the right hand bar of the page are the advertisements of businesses who are participating in Adwords – that is paying Google to feature their ads

Adwords involves ‘bidding’ on keywords, so that whenever your desired keyword is searched on by a surfer (for example, Azrights bids on the keywords ‘register trademark’) your ad will appear among the results.  As such your site stands a chance of being visited (clicked on) by the surfer.  As these surfers are specifically looking for the product or service that your website offers it is a good way of promoting your services to potential buyers Each time a surfer clicks on one of youre ads, you pay google something  for the click.  Some keywords are more expensive than others.  If  only very  few advertisers are bidding on a keyword that term will be less competitively priced.

Google uses a number of third party sites to display its advertiser’s ads, in order to promote your ads more widely.  Amazon is an example of a third party site that participates in Google’s adsense program.  So, for example, if you are looking at books about brands and  trademarks on Amazon you will notice some ads by our competitors about trademark registrations.  Our ads would not appear because we have opted out of  adsense.

Similarly, many  domainers or ‘click farmers’ websites and parked pages also participate in adsense, so that their parked pages or websites will feature lists of  Google’s featured ads. .  Sometimes such pages purely exist as a page of links, such as trademark.co.uk does for trademark ads.  ,

If a cybersquatter has registered a misspelt trademark name such as MIROSOFT they too are likely to use a parked page to receive Google’s ads.  Their page   will feature a selection of ads by Microsoft’s competitors or by businesses  offering similar goods and services to those that Microsoft would sell.  So, the technology Google uses clearly enables it to decide which of its advertisers have suitable ads for such a page, and therein lies the argument as to the liability Google should bear for the wrongdoing.

The third party site receives a share of Google’s  revenue.  So if Google collects 60 pence per click from the advertiser it may  pay 20 pence a click (this is a complete guess) to the owner of the third party site.  Therefore whenever a surfer  clicks on an ad on a third party’s site rather than on google’s own search result page the surfer’s click generates revenue for the cybersquatter (a term that applies to anyone who has registered someone else’s trademark as a domain name).  What’s more it is Google that has created the possibility for the cybersquatter to earn anything from its wrongdoing..Google’s practice was  successfully challenged in the recent litigation by Vulcan Golf in the US District Court in Illinois see here. They argued that under the Anticybersquatting Consumer Protection Act (ACPA) Google’s role in facilitating such profiteering by cybersquatters should attract liability.  The court agreed.

Of course, there are perfectly legitimate uses of parked pages, and it is difficult for anybody to claim rights in names like ‘trademarks’.  Therefore, the question is to what extent should  Google be expected to police the rights of trademark owners.  Where should it draw the line when if it notices that the parked page could possibly belong to a cybersquatter rather than to a legitimate domainer who has good reason to own a domain name, that on the face of it might be someone else’s trademark.

While for brands like Microsoft it may be quite clearcut that a variation of the name Microsoft is likely to be held by a cybersquatter, it is not always easy to know whether or not a domain name is actually infringing someone’s trademark rights, especially where the brand name is a generic word like APPLE.