How the recent case on Google vs Geico affects domain industry.
Ari: Well, the interesting thing is that there was this case with Geico--you know, with Google and Geico.
Monte: Right, right, I remember that.
Ari: Where Geico sued Google, because Google is apparently allowing Geico’s competitors to bid on the term Geico.
Monte: Right, and they won.
Ari: They won. The federal court--well, Google won.
Monte: Yeah, Google won.
Ari: The federal court held that this does not constituted trademark infringement, but I gotta believe that there are gonna be some laws coming down in the future that are gonna make this sort of thing to a certain degree a violation. Perhaps, perhaps not. I mean, it’s kind of like, you know, Burger King opening up next to McDonalds, but it’s a little different. You know--
Monte: Yeah, it’s like--
Ari: --[inaudible].
Monte: --putting Burger King next to McDonalds, but they’re putting a McDonalds sign on their sign.
Ari: Exactly.
Monte: Right.
Ari: So I gotta believe that something’s gonna change in this area, and, you know, I don’t think we’ve seen the end of the--you know, the Geico/Google issue. I’m not sure what is the right result here, but the point is is that if Google is permitted to sell ads to Selective Insurance, for example, for people who--you know, for people--if Selective can bid on the term Geico, why is it any different than somebody with a--you know, the domain name Select--you know, Selective.com putting up ads for Geico, or whatever.
Monte: Right, right.
Ari: So I think we’re gonna see some development in this area over the next year or so.
Monte: Yeah, definitely.
Ari: As the case law develops. But in the mean time, yeah, domain name owners have to be very, very aware of what links are appearing at their websites, particularly if they’re domain names are valuable common word domain names worth protecting. And if you have a name like Apples.com and it’s putting up computers, you may want to contact your pay-per-click partner and let them know, and at least be on record as raising the issue, so if you ever have a problem, you can at least arguer, “Hey, I tried, this is not my problem.” I think just kind of turning the other way and saying, “Hey, not my problem,” is not enough.
Monte: Right.
Ari: I think you need to do something about it.
Monte: Right.
Ari: I know that from experience, because I had a case dealing with the domain name Flamingo.com, where there were links for the Flamingo Hotel. And unfortunately, we lost that case in a UDRP action, not withstanding the fact that I thought I argued pretty well that hey, there’s a hundred hotels in the world called Flamingo in the same area, and the fact that we weren’t responsible for those ads appearing, they were, you know, auto-generated. And we had that evidence in there, but it was irrelevant.
Monte: Oh, wow.
Ari: Yeah, we lost it, and it was a very valuable domain, as you can imagine.
Monte: Hey, Ari, I’m gonna ask you to stay on just for a little bit longer, if that’s okay.
Ari: No problem.
Monte: We’re gonna take a small commercial break, but when I come back I’d like to talk about maybe how people can get indemnification clauses put in with their PPC provider, so that if case this does come up that they’re held harmless, like the end user, the publisher’s held harmless, and they can be released from such, you know, kind of damages if that occurs.
Ari: Okay.
Monte: Okay, hold on for just a couple minutes.
And we’re back. Ari, so picking up where we left off before the commercial break, is it possible, is it unheard of or has it been done before where you can ask your PPC provider to hold you harmless in case something like this comes up? Is there a way to protect yourself--
Ari: Well--
Monte: --if the traffic’s out of your control?
Ari: --I think that’s highly unlikely. I think in many, many cases it’s gonna be the other way around. The pay-per-click provider is gonna want the indemnification.
Monte: Even though they’re the ones serving and doing the mapping of the domain name and serving the ad and all that, and that’s out of your control, if they’re gonna hold the domainer liable for such a case like that?
Ari: Well, I think they’re gonna require that the domainer be responsible. It’s a good point, but to-date, I think in many, many cases, it’s the pay-per-click provider that, you know, wears the bigger pants.
Monte: Right.
Ari: And--
Monte: Well, perhaps we’ll be the first to try to lock that law in.
Ari: I mean, you know, good luck. I mean, you know, they have--you know, they have the power so they draft the contracts and they want--I think a--you know, an easier solution might be to require that, you know, where you have a situation where the links are improper, that they get modified, that a filter be created. But, I think that both the domain owner and the pay-per-click provider kind of want to turn a blind eye to it, because everybody makes money off of it.
Monte: Right, that’s--
Ari: And a lot of--
Monte: --what I was gonna say. There’s probably a lot of money. I mean, maybe those particular links are the highest paid links and then you have a revenue law situation, if you’re screening it for you.
Ari: I mean, a lot of cases, you know, what’s the harm. It’s similar to the Geico/Google situation. It would be nice to get a case where Geico/Google is applied in domain sphere, and, you know, maybe we’ll see one of those decisions in the near future. I may have one myself.
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