In March, Utah's legislature passed a law aimed at limiting online advertising. It basically goes like this: a google search for Hillary Clinton brings up about 15,300,000 web pages, but it also brings up a sponsored link for the Barack Obama campaign website. As the law puts it:
General Description:
This bill establishes a new type of mark, called an electronic registration mark, that may not be used to trigger advertising for a competitor and creates a database for use in administering marks.
So if the Clinton campaign registers her name as an electronic registration mark, she can keep competing campaigns from buying online ads that are triggered off of her name. Now of course, this wouldn't be free, they would have to pay an annual fee to maintain her name as a no no for other campaigns. The bill's supporters argue that companies spend millions of dollars creating their 'online trademark' and that allowing competing companies to generate advertisements based on that trademark is a violation of trademark laws, and generally unfair to the company that has spent it's hard earned money and effort creating it.
Dan Eastman, Utah State Senator from Centerville,
promotes the law by pointing out it's business friendly nature.
I make no apologies. Utah is a highly tech-savvy, super business-friendly state. We have more computers per capita than anywhere else in the nation. It’s a wonderful place to live and a great place to do business.
This new law will make it even more so.
I have a few problems with this law, first, it's nearly impossible to enforce, as it only applies to businesses in Utah (since it's a Utah state law). Now as anyone who lives in a city that is on a state border, or has ever used AOL can tell you, your ip address's geographic location isn't necessarily your geographic location. Matthew Prince, Adjunct Professor of Law at John Marshall Law School, defends the bill on the state senate's website as well (evidently they're bringing in the heavy hitter big title guys to step up for this one)
If search engines are already restricting searches based on the searcher's geographic location, then what is the additional burden preventing them from complying with Utah's law? Moreover, how it is an "undue burden"? The answer is: it isn't.
The problem here is if your ip geographic location isn't a guaranteed accurate indicator of actual geographic location. Do I just have to sign on to AOL to get the ads to appear, or will we only enforce the law if the ip address displays as being in Utah (most Northern Utah, and perhaps Southwest Wyoming or Southern Idaho, Qwest DSL users ip addresses put them in Salt Lake City)? The only way this law could be enforced would be to require the online companies providing the advertising to determine someone's actual location accurately, or force isp's to update their information regarding isp geographic locations? For a company like Qwest, that would likely be quite difficult (
duh).
Seems like a burden on online advertisers and or isp's, and an undue one at that.
My other cause of eyebrow raising with this law is, should we be putting this much effort into protecting a companies trademark. Information Week
explains that there is precedent for allowing a company to use it's competitors brand name and trademarks in their advertising.
Despite the absence of clarity, Utah's new law isn't winning any praise.
"Aside from its constitutional flaws, the law is just bad public policy," said Corynne McSherry, an attorney for the Electronic Frontier Foundation, in a recent blog post. "It undermines the fundamental purpose of trademarks: to improve consumer access to accurate information about goods and services."
As McSherry points out, competitive trademark use is protected under federal law. Otherwise Pepsi couldn't claim to taste better than Coke and Apple couldn't bash Microsoft.
Now if someone wanted to find more information an Hillary Clinton, and was unaware that there were other options available for democratic presidential candidates wouldn't allowing barackobama.com to appear as a sponsored link in the search give that consumer more information about their options of presidential candidates? Does that link inherently give Obama's campaign more support, or will the decision still be made based on the content of the two websites? And since the websites content represents the companies product, if your company was losing business to sponsored advertisements on a search engine when the search keyword is your companies name, shouldn't you blame your products competitiveness or marketing and improve them, rather than hoping a government somewhere lifts you back into competition? Because after all, we want to give noncompetitive businesses a chance to make money not by improving their business, but by having the government change the rules of the game in their favor.