Here We Go Again

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Yet another attempt from the “small-government”, “free-market” Utah legislature to regulate the Internet with SB-236. Ignoring the advice of their own legal council over the ambition of Unspam’s CEO, Mathew Prince, whose past half-baked “Child Email Registry” has also cost Utahns’ tax dollars to defend, the “E-Trademark Registry” passed unanimously.

This attempt to ban competitive forms of keyword advertising is already receiving a goring on the Internet from a variety of sources. How does one gain access to the legislature to write questionable, expensive law to support your business plan and then get repeated access to the pulpit to preach about it? When was Mathew Prince elected to the Utah Senate?

I hope to ask him when we’re both on KCPW’s Midday Metro, Monday at 10:30 AM.

Followup:

Here is the audio of the show.

7 thoughts on “Here We Go Again”

  1. Way to go with the last remarks on the show, Pete! The “Utah Internet” example was a perfect example of the problem, and you pointing out his dismissal of the affected users being “18 year olds” was great!

  3. Pete, your position confuses me. Google exploits a loophole in trademark law when they allow people to steal trademarks for keyword searching.

    Yahoo! forbids this practice in advertisements on its site:
    http://searchmarketing.yahoo.com/legal/trademarks.php

    France has determined that Google’s practice is illegal:
    http://news.com.com/Google+loses+trademark+dispute+in+France/2100-1030_3-5543827.html

    It was only a matter of time until the United States closed this loophole, and I think it’s admirable that Utah is taking the lead in this. I don’t understand why you defend Google’s decision to make billions of dollars by weakening trademarks that belong to other companies.

  4. Rob, thanks for your reply.

    1) Keywords are not trademarks. They can’t be differentiated by class of service.

    2) The USA is not France. We have a first amendment here protecting all speech, including what you say on the Internet.

    3) This law cripples consumer information at the behest of business. If an individual wants to dish dirt on powerful corporation via buying a keyword, then they should have that right. A business shouldn’t be able to squelch their competition on a neutral level playing field like the Internet. I am for individual rights over that of business.

    4) People have trademarked basic words before. Listen to the radio program and hear my recounting of having a competitor named “Utah Internet”. I would then be precluded from buying those words, AS I DO NOW, to advertise my business.

    5) Google’s profitability is a red-herring. Does the Utah Legislature really want to be portrayed as being punitive towards profitable entities?

  5. Pingback: Pete Ashdown’s Journal » Curiouser and Curiouser

  6. Pete-

    Thank you for the engaging and thoughtful reply. I’m enjoying this discussion, and would like to ask you some questions.

    >2) The USA is not France. We have a first amendment here protecting all speech, including what you say on the Internet.

    You and I agree here: It is important to work vigorously to protect freedom of speech, in America, in Utah, and on the internet. I share your desire to oppose anything that unfairly limits internet speech.

    Does the first amendment really protect all speech? Does it protect the right of a Burger King franchise to claim that it’s serving a Big Mac? Trademark law prohibits certain types of speech–that’s the point of a trademark. Are you saying that trademark law violates the first amendment?

    3) This law cripples consumer information at the behest of business. If an individual wants to dish dirt on powerful corporation via buying a keyword, then they should have that right. A business shouldn’t be able to squelch their competition on a neutral level playing field like the Internet. I am for individual rights over that of business.

    Again, I agree with you. Individual rights are crucial.

    Good news for you and me: In the new Utah law, individuals still have the right to buy keyword advertising to dish dirt. The thing the law prohibits is using keyword advertising to compete directly with a trademarked product. For example, under the new Utah law you can still buy the “Big Mac” keyword to link to a website about vegetarianism, but you cannot buy “Big Mac” to link to your Burger King franchise.

    Using other people’s trademarks to promote a competing product has always been illegal under trademark law. Why did it suddenly become okay for Google to do this? Google’s policy violates the spirit of trademark law, and, now, in Utah, it also violates the letter of the law.

    4) People have trademarked basic words before. Listen to the radio program and hear my recounting of having a competitor named “Utah Internet”. I would then be precluded from buying those words, AS I DO NOW, to advertise my business.

    “Utah Internet” sounds like a generic term to me. When people register a trademark for a generic term, they do not enjoy much control over the term. The new Utah law does not alter previously settled components of trademark law. The same protection you enjoy when using the generic term “Utah Internet” while offline will still apply to you when you use the term for online advertising in Utah. More on generic terms:

    http://en.wikipedia.org/wiki/Trademark#Registrability_and_distinctive_character

    5) Google’s profitability is a red-herring. Does the Utah Legislature really want to be portrayed as being punitive towards profitable entities?

    I agree with you completely. You and I are both capitalists. Google makes a profit mostly because it provides valuable services, services I use and appreciate every day. I suspect that Google will remain profitable even after it comes into full compliance with this new Utah law.

    PS–Thank you for the XMission WiFi connection at the Salt Lake Roasting Company. I used it on Monday. Your service is valuable to me, and I hope your company is a profitable entity.

  7. Rob, existing trademark law protects trademarks on and off the Internet. I have fought domain squatters with trademark law and it has protected me. If I wanted to go after someone abusing my trademark with keyword searches, it would protect me there as well.

    Is “Delta” a generic term? Who gets to register it in the E-Trademark Registry? Delta Airlines, Delta Faucets, or Delta Utah? If someone hands you a paper with the word “Delta” written on it can you tell immediately whose trademark it is? What makes you believe Google can discern intent any more than you can? Isn’t that the measure of burdensome? If this law burdens interstate commerce it is unconstitutional.

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