Utah Passes Dumb Law And Other Fun Facts
A good find by the Electronic Frontier Foundation (via SEL -> Techdirt) reporting that Utah has passed a Trademark Protection Act to prevent companies from buying ads that uses the protected trademarks of others.
The silly little law will essentially create a new "mark" nicknamed an "electronic registration mark" that, when assigned, prohibits others from bidding on the protected term. For example, copy centers will no longer be able to bid on the term "Xerox". If someone does try to target that term, the registered owned can take legal action. It costs $250 annually to register your mark. That could add up to a pretty penny if you’re a major company looking to protect the names of several of your properties.
There are a slew of problems with this piece of legislation right out of the gate. First, as noted by Marty Schwimmer, Utah’s General Counsel, the law may actually be unconstitutional due to the burden it places on interstate commerce. Way to go, Utah!
Second, the strain this would put on the search engines and advertisers is extraordinary. The fact that advertisers have the ability to geo-target ads means the engines are able to determine a searcher’s location, but the system isn’t perfect by any means. I know because I still get ads that are clearly not targeted towards me. Can the courts really expect to hold search engines responsible for (a) tracking down the location of searchers and then (b) checking to see if the ad they’re viewing contains protected terms? Not if they don’t want to completely bog down the search engines.
Also, what about advertisers? This essentially requires them to start cloaking ads so that a searcher from New Jersey can view them, but a searcher from Utah can’t. Talk about a headache. Not to mention what it will do to small companies that are license resellers. How are they supposed to create an ad for New Balance sneakers without using the term [New Balance]? The courts are seriously threatening their ability to sell their product and I don’t think that’s fair. It’s also not fair to put the burden of sifting through electronic registration marks on the search engines. Utah can pass this law, but it seems almost impossible to enforce.
Danny Sullivan brings up another good point noting that the US government has already ruled that linking ads to trademarked terms is not a violation of trademark law. The last time I checked the federal government trumped Utah. [Utah, this is your tax dollars at work. Awesome news for a state that used to rank first in personal bankruptcies.--Susan]
In a perfect world, this would be a moot point anyway. With the search engines using quality scores, most of the advertisers bidding on competitor keywords will disappear as they continually get low clicks because they are not what the searcher is looking for. Then terms get turned off unless the advertiser is willing to pay a huge price per click.
Personally, I think the concerns listed above and the technical difficulties involved with enforcing this law far outweigh any protections that it might provide. Another irony is that other people bidding on trademark terms might actually help companies who own the trademark even generate more brand exposure.
We realize this news probably bored most of you to tears and we apologize for that. In an effort to regain your favor, here is some fascinating Utah trivia for you to enjoy:
- The name Utah comes from the Native American Ute tribe and means people of the mountains.
- People who live in Utah are referred to as Utahns
- Utah is 84,900 square miles and ranked 11th largest state in the U.S.
- Utah’s state bird is the California sea gull, the state motto is "industry", the state insect is the honeybee, the state emblem is the beehive, and the state dance is the square dance.
- In 2004, 62.4 percent of the population identified themselves as Latter-day Saints
- Beaver, Utah is the birthplace of Butch Cassidy
- The federal government owns 65% of the state’s land.
- The television series “Touched by an Angel” is filmed in Utah.
- Utah has the highest literacy rate in the nation.
- According to their state song, "Utah is the place where dreams come true"
See now, wasn’t that fun?