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The ABA Wants To Keep This A Secret From Us!

by Mark on January 29th, 2008

Which is exactly why I’m going to pass it on…

The Electronic Frontier Foundation, specifically Corynne McSherry and Eric Goldman, posted this today;

ABA IP Section Quietly Considering Anti-Consumer Proposals to Regulate Keyword Advertising

Think quickly! Don’t look down and then tell me what you think it is…

Anti-Consumer proposals to regulate keyword advertising? Who would do such a thing? Why - our own American Bar Association, who else? Corynne tells us;

“these efforts — not to mention the committee’s attempts to prevent public scrutiny of those efforts — are deeply misguided and could help undermine the very purpose of trademarks: to improve consumer access to accurate information about goods and services.”

Then they both tell us;

“The tussle over keyword advertising has spilled over into numerous arenas, including the courts, the legislatures (such as Utah’s ill-conceived attempt to ban keyword advertising), the private trademark policies of the search engines and the law review literature. Given the magnitude of the issue—and the billions of dollars associated with keyword advertising—it’s not surprising that new battlefields are cropping up all over the place. But the latest skirmish has an unexpected venue—the closed-door deliberations of the American Bar Association.”

Now, actually, we have no further to go than “billions of dollars associated with keyword advertising” plus “battlefields,” to come to a thorough understanding of what this is all about. But… add to it what Corynne and Eric say at the end and my understanding is total and complete;

“First, why is the ABA IP Section attempting to intervene in this contentious area of the law in the first place? These resolutions are political in nature and reflect a deep trademark owner-favorable bias that does not necessarily reflect the views of American lawyers generally or IP lawyers specifically. It’s hard to see how these biased and divisive statements are an appropriate use of the ABA’s resources or authority.”

Political, end of basic story.

Here’s the deal - “The Trademark Litigation subcommittee of the ABA’s IP Section is evaluating four resolutions relating to keyword advertising.”

  • “The first resolution offers a perplexing answer to a problem that doesn’t exist… At the moment, it appears this resolution doesn’t do anything more than restate current law. Surely the Section has better things to do than pass resolutions approving the status quo.”
  • “The second resolution seeks to declare that a trademark use in commerce always occurs (1)’if it appears directly in an advertisement on the resulting Internet web page,’ and/or (2) when a trademark is (a) ‘hidden in a Metatag,’ or (b) ‘used principally for its importance as a Keyword.’ … in an ineffectual nod to fair use, the resolution makes a confused distinction between a purely nominative or ‘otherwise allowable’ use and a use intended to trigger keyword ads. Of course, the one does not preclude the other.”
  • “The third resolution … appears to be designed to ensure that keyword lawsuits will be as expensive as possible, to no good purpose.”
  • “The fourth resolution seeks to declare a 2005 Second Circuit opinion, 1-800 Contacts v. WhenU, to be a ‘minority position’ that is ‘flawed in its reasoning.’ In support of this, the resolution notes that the case was ‘based on facts too unusual to apply to most other cases in this area.’
    The 1-800 Contacts v. WhenU case involved the sale of trademarked keywords by an adware vendor. In that case, the Second Circuit flatly declared that such sales did not constitute a trademark use in commerce, handing a decisive and clean victory to the defense. This case has proven to be a major ruling, with at least a half-dozen cases favorably interpreting it to find for the defendants in keyword advertising cases.”

Corynne and Eric end their article with this (which I think would apply to so many more places than this single issue in the atmosphere of the USA today);

“We don’t understand why an ABA committee seeks to conduct deliberations about resolutions–that are presumably intended to be promulgated to the legal community–behind closed doors, away from public scrutiny. As this critique of their contentindicates, these resolutions would substantially benefit from the input of a wider range of voices. We hope the committee solicits that input or, better yet, squelches this ill-conceived effort to micromanage the courts.”

I agree - do you? Please, give the article a thorough read…

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POSTED IN: Legal, Online Money, Web News

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