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Seek and ye shall find: but is it legal?

http://finance.sina.com.cn 2004年02月19日 10:10 新浪财经



A good search engine is like a telephone directory, an encyclopaedia and God, all rolled into one: ask and ye shall be answered. Google is omniscient.


Google, the world's largest search engine, can tell you how to clean your keyboard, or your outboard, or your skateboard; it knows quotes from Boethius to Bentham to Bush; it even knows how to make perfect pastry. If you seek, Google will find. Internet life would be nasty, brutish and short without it.

但是,必须有人为上述种种探索行动买单。对Google来说,卖广告是为其搜寻行动提供资金支持的方法之一。互联网商家向Google或其它搜索引擎付费,购买“寻找权”(right to be found):Google向商家出售与其业务相关的“关键词”,以便追求Birkenstocks鞋的人在输入这个词后,或许就可直接被带到卖鞋的网站。付费站点列表排在未付费站点列表的上方或旁边,不管排在哪里都会很显眼。

But somebody has to pay for all this exploration, and one of the ways Google finances its quest is by selling advertising. Internet merchants pay Google and other search engines for the right to be found: Google sells them "keywords" related to their business, so that people who covet Birkenstocks may be directed to sites that sell footwear. Paid listings appear above or beside unpaid listings; either way they are very prominent.


"Keyword advertising" is the online ad world's biggest current success story. But advertising is a nasty business: merchants are supposed to buy keywords that they think people will use when searching for their products - but they may find it more lucrative to buy keywords for a competitor's products instead. That way, they can divert customers from another site to theirs. But now these ways of the wild, wild web are being tested in court.

时机不可能比现在更关键了:Google正在考虑公开上市(尽管短期内似乎还不会做出决定);而且比尔•盖茨(Bill Gates)已明确表示,微软(Microsoft)打算逐步踏入搜索引擎市场。但是,至少在几宗诉讼案让搜索引擎法规范之前,微软等公司所觊觎的这一业务模式,其合法性必定还是令人生疑。

The timing could not be more critical: Google is considering going public (though the decision seems to be a long time coming); and Bill Gates has made it clear that Microsoft is about to lumber into the search engine market. But the legality of their coveted business model must remain in doubt, until the law of the search engine is tamed by at least a couple of lawsuits.

上月末,一宗诉讼案在纽约州联邦法院立案,这是迄今为止最重要的一宗搜索引擎诉讼案:涉及广告客户在室内装饰虚拟世界中的是是非非:美国窗帘和墙纸公司(American Blind and Wallpaper Factory,以下简称美国窗帘)对Google发出质疑,称其无权向美国窗帘的竞争对手出售“American”和“blind”或“blinds”等词汇。美国窗帘自称是最大的窗帘和墙纸网上零售商。

The most important one so far was filed late last month in the federal court in New York: it involves the rights and wrongs of advertisers in the world of virtual interior decoration. American Blind and Wallpaper Factory, which says it is the biggest online retailer of window and wall coverings, is challenging the right of Google to sell the words "American" and "blind" or "blinds" to rival decorators.


American Blind says customers who enter those terms are patently trying to find its products. Instead, they may be redirected to the rival site, justblinds.com. The result, says American Blind, is to divert and confuse the consumer: to google is to deceive.


Google sees no need to defend itself in the press: it has no comment, when charged with deception. And its defence in court is hardly more exhaustive: Google says the terms are descriptive, and therefore they should not be protected. On that basis, Google is seeking to have the whole concept of keyword advertising validated by the courts.

但美国窗帘反驳说,依照美国法律,这些词语属于描述性的,但这一事实并不妨碍它们成为商标。以通用汽车(General Motors)为例,“General”和“Motors”都是普通词汇,但该标识受到保护。此前,美国窗帘曾以侵犯商标法为由,起诉一家网站将其名称中的词语用作域名,最后胜诉了。难道Google的案子有那么大差别?

But American Blind counters that, under US law, the fact that terms are descriptive does not stop them being trademarked (look at General Motors: the words are generic but the mark is protected). American Blind won a lawsuit challenging the use of its terms in a domain name, on the grounds that it violated trademark law. Is this case so different?

美国窗帘是个重利的小暴发户,它正在攻击网络生活神秘的心脏和灵魂:帮助我们在信息丛林中探路的搜索引擎。但美国窗帘的律师戴维•拉梅尔特(David Rammelt)说,如果搜索引擎的未来受到这宗诉讼的威胁,那么就商标持有者而言,后果也一样严重。“对任何名称中带有描述性字眼的公司来说,这起官司都有非同小可的含意,”他说,“如果Google能把这些字眼卖给竞争对手,那将对新商务领域的品牌策略产生显著影响。”

American Blind is a mercantile little upstart that is attacking the mystic heart and soul of life online: the search engines that help us find our way in the information jungle. But if the future of the search engine is threatened by this lawsuit then, says David Rammelt, the blind company's lawyer, the consequences could be just as serious for trademark owners. "This case has big implications for any company that has a descriptive term in its name," he says. "If Google can sell them to competitors, that could have a dramatic effect on branding in the new commerce."


It is not as though the terms "American" and "blind" can never be used in e-commerce, says Mr Rammelt.

拉梅尔特先生表示,竞争者可以利用对手的标识来做比较性广告:如果网站justblinds.com宣称“和American Blinds一样好”,而且若用这些词在Google上搜索,导致justblinds在未付费网站列表中弹出,那美国窗帘就无话可说。重要的是钱:Google并不是在卖一个比较性广告,而是在销售一种视线转移手段。它不该以美国窗帘的损失为代价来牟利。

Competitors can use a rival's mark, for the purposes of comparative advertising: if the site justblinds.com claimed to be "as good as American Blinds" - and the use of those words caused it to pop up in the unpaid section of a Google search - then American Blind could not complain, says Mr Rammelt. What matters is the money: Google is not selling a comparative advert; it is selling diversion. It should not profit from American Blind's loss.


True, users who type in the words "American" and "blind" may be looking for the most generic uses of those words; they may want to find the American Foundation for the Blind. The wallcovering people have no problem with that: their beef is only with the sale to rivals.

但这种牢骚也许真的非常重要:在一起有关旅行广告的官司中,一家法国法庭已判Google败诉,裁定Google不得销售“bourse des vols”(航空旅行市场)这个词语,此事堪称“美国窗帘案”的法国版。

But that could be a very important beef indeed: already a French court has ruled against Google in the matter of travel advertising (ruling that Google could not sell the term "bourse des vols" [market for flights] - which might well be the Gallic equivalent of American blinds).


The internet search engine has done more to advance human knowledge than anything since the printing press - not to mention what it has done for the world of shopping.


But up to now, searching has been a lawless activity. One way or the other, it is time courts came up with some rules.





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