Google's aggressive defense of MoveOn.org

Sometimes, MoveOn.org can outrage conservatives without having to actually do anything. Last month the liberal advocacy group drew brickbats for demanding that CafePress stop offering t-shirts and bumper stickers for sale that criticized the group by name. In a remarkable stretch of trademark law, MoveOn argued that the merch infringed on its trademark. CafePress, to its credit, dismissed most of the group's requests as groundless.

This week, Google removed four paid links that the re-election campaign of Sen. Susan Collins, R-Maine, had bought on the grounds that they, too, infringed MoveOn's trademarks. The take-down was reported by the San Francisco Examiner, then picked up by bloggers such as Glenn Reynolds at Instapundit and Scott Cleland at The Precursor Blog. However, as noted by Cleland -- a frequent Google basher -- the main fault here lies not with MoveOn, but with Google and its knee-jerk defense of trademarks.

Collins' campaign bought the links, which you can see here, in an attempt to capitalize on MoveOn's singular unpopularity among Republicans. The name has become a conservative fundraiser's magic word, opening wallets almost as fast as "gay marriage" or "cut and run." But MoveOn had previously instructed Google to remove any use of its trademarked name in the text of a paid link, and when the search giant discovered the name in Collins' ads, down they came. (For those unfamiliar with Google's search advertising, the paid links are the ones that appear on the right side of the screen under the heading "Sponsored Links.")

Paradoxically, Google has fought in court to preserve its advertisers' rights to buy keywords based on trademarked names. Paid links are tied to keywords; for example, if you wanted to run an ad for your company's running shoes, you might try to buy the keywords Adidas, Nike and Reebok so that your ad would appear whenever someone used Google to search for one of those brands. And thanks in part to Google's legal team, Adidas, Nike and Reebok can't stop you from doing that. The director of Internet strategy for Collins' campaign, Lance Dutson of Maine Coast Design in Sears Mont, Maine, said that one of the keywords he'd bought had, in fact, been MoveOn.org. But that wasn't what got him into trouble, he said -- it was including "MoveOn.org" in the text of the ad.

Legally, the same principle should apply to keywords as to paid links. Uses of a trademarked name and phrase are verboten if they confuse readers, not simply because the trademark owner has asked for exclusivity. In Google's defense, one of the Collins campaign's links did seem to imply that it was backed by the liberal group. It read, "MoveOn.org in Maine/Susan Collins is MoveOn's primary target. Learn how you can help." Readers could easily think that MoveOn was the one seeking help, not Collins. The other three, however, were so obviously anti-MoveOn ads, there was no chance anyone would be confused into thinking the group had sponsored or approved them. This one was typical: "Help Fight MoveOn.org/MoveOn's money pollutes politics. Help Maine fight back." In each case, the ad closed with a link to www.SusanCollins.com, further clarifying the source.

Google squelched political speech with its reflexive removal of the ads based on a faulty application of trademark law. It needs to follow the lead of CafePress and think before it hits the delete key.