Apple Being Sued in Europe Over 'iWatch' Ad Campaign on Google

[flyinmac]

This bit paints a picture.

Yes, it is funny that they planned to use Apple's launch of the Apple Watch and its associated iWatch nickname to create confusion and launch an iWatch smart watch of their own. Yet they complain about supposed confusion in separate and unrelated markets.

 

[KALLT]

Apple Watch = a watch.

iWatch = health and safety communication software.

Where is the scope for consumer confusion with their products / services, exactly?

Move along, Probendi.

That's not how trademarks work. There is a catalogue of trademark categories called the Nice classification and products are assigned to one or more categories upon registration. If the pursuer claims that Apple is using their trademark for a product that would fall under that category then they are entitled to protect their trademark. The Apple Watch could fall under health and safety communication software too, since the Nice classification isn't that precise, particularly with modern technology. Apple registered its Apple Watch trademark under a broad list of categories as well, including health-related technology and services. In this case the classification may indeed overlap, giving the pursuer a cause of action. A trademark holder can prevent anyone else from using that trademark in that category and they can accordingly oppose the use of that trademark as well.

So Coca-Cola is not allowed to use 'Pepsi' as a sponsored link? I don't know of any law that says this is illegal.

There is ample precedent. If you hold a trademark for a product then you don't want others, especially competitors, to use that trademark against you. Think of free-riding, dilution and so forth. When a user searches for "pepsi" but is instead directed to Coca-Cola then the latter infringes upon Pepsi's right to control its own trademarks. Keyword ads are merely a novel case of trademark infringement, but not without precedent.

 

[Karma*Police]

Don't like it? Then do what every other company out there is doing: Spend more money on your AdWords campaign so that YOU take the top spot. This is ridiculous...

They wouldn't even have to outspend Apple if their site was highly relevant. They would naturally get a higher quality score and outrank Apple every time without spending a fortune.

 

[The Doctor11]

IMO Apple isn't doing anything wrong. I don't care who owns the name. When it comes to search engine ads I think whoever shows Google the money should get the spot. If Probendi wants to be the Google result ad when searching for iWatch they need to have a bidding war over it with Apple. It appears to me though they aren't interested in buying the ad, more of just kicking Apple out of the ad.

 

[soupcan]

So.......

Because Google is showing Apple Watch results when people type in iWatch Apple is to blame?

Good joke. Next!

 

[kcirtap00]

Europe is not a country... and the US got enough ridiculous laws, too.

I didn't say it was

 

[Benjamin Frost]

Of course, Apple should have called it the iWatch in the first place.

 

[dannyyankou]

Lol, they're so dumb. The only reason an "iWatch" search shows Apple's website on top is because people search iWatch on Google, click on Apple's website, and the more clicks Apple's website gets, the higher they appear in the search results.

 

['Dorian]

IMO Apple isn't doing anything wrong. I don't care who owns the name. When it comes to search engine ads I think whoever shows Google the money should get the spot. If Probendi wants to be the Google result ad when searching for iWatch they need to have a bidding war over it with Apple. It appears to me though they aren't interested in buying the ad, more of just kicking Apple out of the ad.

I agree with your first sentence, but the rest makes no sense. It's under Googles control, not Apples. What does Yahoo or Bing bring up? More importantly, what does Siri bring up in the area where Apple doesn't own the trade mark? If Siri only directs to Apples watch page then it could be an issue for Apple.

For your bidding war thought, just imagine... "Siri, find Fritos." "Sure, here is the Apple Watch". "Siri, find Rolex". "Sure, here is he Apple watch". That whole idea could get out of hand quick. Now, asking Siri for iWatch in a location where there is a trademark for it and getting a link to the Apple Watch, they would certainly have a case. Not so much with Google.

 

[WordsmithMR]

I am going against the norm here... But I think Apple is in the wrong here. This is why you have a legal team that works with your marketing team, to avoid issues like these when it comes to patents and trademarks and what not.

But this Probendi company just lost the case if they honestly, openly admitted they wanted to take advantage of the consumer confusion. Any judge that sees that article/interview where they admit that will throw out the case. You can't have your cake and eat it too.

 

['Dorian]

Lol, they're so dumb. The only reason an "iWatch" search shows Apple's website on top is because people search iWatch on Google, click on Apple's website, and the more clicks Apple's website gets, the higher they appear in the search results.

They are the dum ones? Lol

They are paying for an AdWords campaign which brings it up as a top result regardless of how many clicks it gets.

 

[kcirtap00]

I agree with your first sentence, but the rest makes no sense. It's under Googles control, not Apples. What does Yahoo or Bing bring up? More importantly, what does Siri bring up in the area where Apple doesn't own the trade mark? If Siri only directs to Apples watch page then it could be an issue for Apple.

For your bidding war thought, just imagine... "Siri, find Fritos." "Sure, here is the Apple Watch". "Siri, find Rolex". "Sure, here is he Apple watch". That whole idea could get out of hand quick. Now, asking Siri for iWatch in a location where there is a trademark for it and getting a link to the Apple Watch, they would certainly have a case. Not so much with Google.

But that's how AdWords works, you outbid your competitors. It has everything to do with outbidding Apple for Google's ads.

 

[ApfelKuchen]

That's not how trademarks work. There is a catalogue of trademark categories called the Nice classification and products are assigned to one or more categories upon registration. If the pursuer claims that Apple is using their trademark for a product that would fall under that category then they are entitled to protect their trademark. The Apple Watch could fall under health and safety communication software too, since the Nice classification isn't that precise, especially with modern technology. Apple registered its Apple Watch trademark under a broad list of categories as well, including, health-related technology and services. In this case the classification may indeed overlap, giving the pursuer a cause of action. A trademark holder can prevent anyone else from using that trademark in that category and they can accordingly oppose the use of that trademark as well.

Nicely explained!

There is ample precedence. If you hold a trademark for a product then you don't want businesses, especially competitors, to use that trademark against you. Think of free-riding, dilution and so forth. When a user searches for "pepsi" but is instead directed to Coca-Cola then the latter infringes upon Pepsi's right to control its own trademarks. Keyword ads are merely a novel case of trademark infringement, but not without precedent.

Things do get a bit murky here. This is about placing an advertisement adjacent to a search for a trademarked term, it's not about using the mark itself. It could be seen as similar to McDonald's placing a billboard adjacent to a Burger King, or radio/TV advertisers paying to have their ads play adjacent to a program sponsored by a competing company (the program attracts a demographic that is attractive to the sponsor's competitors as well). Sponsors negotiate for and/or pay extra for "no adjacencies." Now, I can see an argument that Apple's pervasive use of this technique does dilute the meaning of the mark, but I wouldn't place bets on how the chips would fall in court.

For that matter (turning to SEO), has any trademark-holder been able to prevent competitors from using their mark in meta tags (as they are not displayed)? Search engine results do not automatically redirect a search for "pepsi" to Coca-Cola's web site, they produce links that may represent the results the searcher desires, or may not. If nobody clicks the links for Coke when searching on "pepsi," then Coke falls out of the rankings (with the exception of sponsored links). So long as the links/descriptions generated are honest as to what they are, there is no attempt to confuse.

 

[snooover]

I would of thought that the only reason "iWatch" was even related to "Apple Watch" was because of multiple Google searches that then lead on to The Apple "Apple Watch". Google Would collect info via Cookies.

It could be worse! : iWatch
Did You Mean "Apple Watch"?

 

[KALLT]

Nicely explained!

Things do get a bit murky here. This is about placing an advertisement adjacent to a search for a trademarked term, it's not about using the mark itself. It could be seen as similar to McDonald's placing a billboard adjacent to a Burger King, or radio/TV advertisers paying to have their ads play adjacent to a program sponsored by a competing company (the program attracts a demographic that is attractive to the sponsor's competitors as well). Sponsors negotiate for and/or pay extra for "no adjacencies." Now, I can see an argument that Apple's pervasive use of this technique does dilute the meaning of the mark, but I wouldn't place bets on how the chips would fall in court.

I do think there is a distinct element here: the advertiser chooses the AdWord themselves, i.e. they are entering a keyword into Google's AdWord service and Google accordingly puts a sponsored link at the top of the results page whenever a user enters that keyword. I would argue that they are specifically using someone else's brand to promote their own products and that is something trademark law is concerned with. So does Apple in this case: they don't own the brand "iWatch", but they are using the name nonetheless to promote their own product. Of course that isn't enough to succeed in court, more would have to be demonstrated, but I can follow the reasoning.

For that matter (turning to SEO), has any trademark-holder been able to prevent competitors from using their mark in meta tags (as they are not displayed)? Search engine results do not automatically redirect a search for "pepsi" to Coca-Cola's web site, they produce links that may represent the results the searcher desires, or may not. If nobody clicks the links for Coke when searching on "pepsi," then Coke falls out of the rankings (with the exception of sponsored links). So long as the links/descriptions generated are honest as to what they are, there is no attempt to confuse.

There are some preliminary rulings by the ECJ about this: C-278/08 BergSpechte v trekking.at (the latter used the keywords "BergSprechte", among others), C-323/09 Interflora v Marks & Spencer (the latter used the keyword "Interflora"). Although the cases are more complex, the ECJ nevertheless accepts that using AdWords in that way can lead to a trademark infringement. Google itself would be absolved from liability under trademark law, they ruled that out in another case.

 

[iConnected]

That's not how trademarks work. There is a catalogue of trademark categories called the Nice classification and products are assigned to one or more categories upon registration. ....

I understand how trade marks work. Apple is not using iWatch for any products.

The question of whether Apple is infringing Probendi's IP rights in any way via these sponsored search listings is rather more complicated than that, as demonstrated by the long running legal case of Interflora vs Marks & Spencer. However, from a layperson's perspective, I think you will struggle to find anyone who feels that Probendi is suffering any harm.

 

[Proven-PPC-Mgr]

I own an online advertising agency that manages Google Adwords ads for many clients and I'm a Certified Google Adwords Professional. You can bid on any trademarked keyword, but you can not include the trademarked word in your ad.

The people who manage Apple's ads on Google did nothing wrong here.

Anyone who does this for a living knows these specific details about Google's advertising policies, so it's a level playing field. For example, Probendi (or anyone else) could even bid on the keyword "apple watch" and there's nothing Apple can do about it as long as "apple watch" isn't anywhere in the ad text.

 

[Porco]

Probendi
(1) noun
Irish software development studio.

Probendi
(2) adjective
In favour of something bending; he placed his iPhone 6 Plus in his back pocket and intentionally sat down upon it - he was probendi.

 

[morrisz]

So.......

Because Google is showing Apple Watch results when people type in iWatch Apple is to blame?

Good joke. Next!

Apple bought the adword. It's not a general search result.

 

[rsavaiano]

I work in the paid search space. Google's trademark policies are pretty clear. Advertisers cannot use trademarked terms in their ad copy, unless that advertiser is a reseller of the said trademarked product and has written consent from the trademark owner (i.e., Jewel advertising that they carry Pepsi). From a keyword perspective, because it's auction based, it's free game. Google doesn't get involved in with who bids on what term. There isn't really anything Probendi can do to prevent anyone from bidding on the term "iwatch". If they don't want Apple to appear first in the listings, they need to jump into the auction.

 

[Swift]

Apple Watch = a watch.

iWatch = health and safety communication software.

Where is the scope for consumer confusion with their products / services, exactly?

Move along, Probendi.

And doesn't "i" as the first letter in your brand's naming kind of make people think of Apple?

 

[Swift]

I won't say this is the bottom of the barrel, but claiming European rights to a name thieved off of the Internet as the presumed name of the new watch Apple was going to make, is the actions of a domain squatter who wants to make a little capital from somebody else's work. The fact is, there is no such product. Ahem. So far.

 

[JAT]

I thought the USA was the land of frivolous lawsuits.

 

[Fzang]

I swear that all these companies have been preying on Apple's naming scheme ever since the first iMac. Naming all your products iSomething when you're not Apple is basically trolling. Correct me if I'm wrong.

 

[Gav2k]

If you type a word into any search engines, you often get ads that pop up from competing products. But the engine should also display correct results. When I type iwatch into google, i get nothing but Apple Watch new stories, links to Apple, and images of Apple watches. When I simply go to iwatch.com, there is nothing but a squatter site (for loans). After clicking through several pages of the results for iwatch, I could find no mention of the Probendi product. Either Apple really has taken over the iwatch term and usurped this company or the company has never put anything out to show up in the search engine results. It will be interesting to see what evidence is provided here.

The iWatch association isn't apples fault. It's ours and all the media publications. It was referred to as the iWatch for a good few years and that in itself sculpts the way a search engine displays it's results.