written by:

To the judges of the Second Circuit Court of Appeals:

I frequent online stores like Amazon to make purchases. I use Facebook to talk with friends. I use Wikipedia to check facts (to a point), and I use Google to search.

If I want to visit Twitter, I’ll use the URL bar – thank you very much – and type twitter.com. If, however, I have no idea what Twitter is, I might be inclined to use Google to search for results using “twitter” as a keyword. What comes up will be a page full of ‘search results,’ the top result being the website Twitter itself.

Does this mean I intended to go to Twitter.com all along? Of course not! It means I wanted to search for results related to the term. Sure, I might end up there, but I chose to go to Google first for a reason.

Google is, first and foremost, a search engine. Google doesn’t presume to know what you want to do when you perform a search, it simply displays about ten results it thinks you are most likely interested in, along with pages and pages of additional results, just in case it didn’t guess correctly the first ten times.

Sometimes when you perform a search on Google, you’ll see advertisements along the top and right-hand side of your results. Generally, this means what you are searching for could likely be found in a store. A search for “luggage,” for example, turns up lots of ads, and as it turns out, people looking for search results for that term find the related ads very appealing. Why? Because they are most likely looking to purchase luggage.

In contrast, a search for “Paris Hilton” yields no ads. Why? Most of the people searching that term find ads unappealing. In most cases, these people are not looking to purchase products or services relating to Paris Hilton, but rather, they are looking for scandalous news items or pictures of the bawdy celebutante.

Is Google being presumptuous about user behavior when they fail to return ads for “Paris Hilton” as a search term? No. Although a keyword with that sort of search volume would surely draw in advertisers, doing so is not Google’s chief concern. Google’s chief concern is displaying relevant ads that get clicks, and if the ads don’t get clicks, Google removes them. If Google kept showing ads nobody clicked on, one could infer that the ads were disliked, and if Google kept showing ads that nobody liked, wouldn’t people be more inclined to use a different search engine, one that didn’t bombard them with such useless ads? I know I would.

Now, consider a recent ruling by the Second Circuit Court of Appeals, one which makes it possible Google may be banned from allowing advertisers to participate in trademark bidding, aka the practice of bidding on a competitor’s trademark to draw people to your site. It is the court’s opinion that competitor ads can mislead and confuse users who, in its estimation, are just trying to get to the actual brand page. If you search for ‘Lexus,’ for example, this decision could prevent you from seeing ads for Mercedes-Benz, whether you like it or not.

What does that mean? Many things.

First of all, it means the government has decided you are too stupid to properly use Google. In our Lexus/Mercedes-Benz example, as it pertains to this point, the government has decided your intention for you. You searched for a brand and so no other brands are allowed to show ads because this would confuse you, the person who didn’t know to just type ‘lexus.com’ in the URL bar. This may be true; you may not care at all about a Mercedes-Benz and be searching only for a Lexus.

But here’s the important question: do you want the government making that decision for you?

Before this ruling, if most users searching for ‘Lexus’ decide they don’t like seeing the Mercedes-Benz ads, the ads will go away very quickly, for as we mentioned earlier, Google does not want to lose your business by showing ads you do not like. If, however, users searching for ‘Lexus’ enjoyed seeing ads from other brands and click on them, the competitors ads would be allowed to show.

Perhaps this example is unconvincing. A Lexus and a Mercedes-Benz are different enough that not only do most people not want to see ads for Mercedes-Benz in their Lexus results page, but they might even feel misdirected, cheated, or even offended if one were to appear…but what about Kleenex? What about Xerox? What about Roller-Blades? What about Jet Skis? If I’m a competitor and I make facial tissues, copy machines, inline skates or personal water crafts, I might be a little upset if I weren’t able to advertise on some of my best, most important keywords.

But perhaps we’re all missing the point. When it comes to regulating trademark bidding, we’re dealing with a slippery slope. Before this ruling, Mercedes-Benz was allowed to advertise on a search for Lexus provided that they didn’t use the word “Lexus” in their ads. After all, if the headline reads “Lexus” you might actually be led to believe that you were on your way to a site endorsed or owned by Lexus, not a competitor.
This seemed fair to me, especially coupled with the fact that if competitor ads weren’t clicked—i.e. weren’t liked by users—they generally disappeared. More importantly, if I felt Google was consistently misleading me with their search results, I know I can vote with my virtual feet by switching allegiances to Yahoo!, MSN, Ask.com or any other search engine available. Similarly, if I don’t like the way Wal-Mart stocks its shelves—perhaps they are advertising Huggies coupons in the Pampers section—I’ll probably begin shopping at Target or Kmart.

The bottom line? I’m smart enough to know what I want — and make my own decisions. And I have a feeling most consumers out there feel the same as I do.

We live in a very, very litigious society. Sometimes, society is aided by such litigation. Justice is sometimes served and freedoms are sometimes protected. However, this does not appear to be the case with this most recent ruling. What the court has done is simply generate more rules, more red tape, more lawsuits to come and more headaches for just about everyone.

On top of that, the court’s decision has demeaned us all. Do we really want the court telling us how to use Google? Do we really want them interfering to such an absurd degree with an American business? How would you feel if the court barged into your office and began writing rules for you to follow? Maybe it’s because Google is so big and powerful we forget it is a company just like the one we work for every day. Sure, this is a unique case, and Google has an embarrassment of riches, but isn’t it entitled to run a search engine the way it feels will best suit the consumer, regardless of its popularity?

As I see it, the cons of regulating Google in the manner the Second Circuit Court of Appeals proposes far outweigh the potential pros of protecting users from brand confusion and insulating brands from the possible consequences of such. We are opening the door to court intervention in business in a way I find frightening. We are making an assessment of the American public I find insulting. We are protecting a group that needs no protection, and harming a company who is has done much to shape the Internet into the amazing tool it is today.

In closing, and to reiterate:

I use Amazon to shop, Facebook to interact, Wikipedia to learn, and Google to search. If I am ever dissatisfied, I will gladly use Ebay to shop, MySpace to interact, Reference.com to discover and any of the myriad other search engines to search. I’d prefer the government not dictate my satisfaction for me, nor force Google into making changes users can already make themselves.

I think the decision of the Second Circuit Court of Appeals is a mistake, and I hope this fight isn’t over.

Michael Block


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