Back in college, my friends bought web domains on classmates’ names and held them for ransom. The domain names redirected to increasingly offensive sites until tribute was paid. For about two weeks in 2001, elaineou.com went straight to goatse.

This is called domain squatting. Before Google completely destroyed any semblance of control over digital reputation, a vanity URL was proof of a person’s online existence. Today, digital reputation is encapsulated in a Google search query.

Organic search results are subject to Google’s editorial judgment [1], but sponsored results can come from anybody. What more, they’re triggered by whatever keywords the advertiser wants.

Consider my favorite victim, George. George is interviewing for jobs. Prospective employers who want to conduct a background check will enter his name into Google. To protect my friend from the oppression of wage labor, I place ads triggered by searches on his name.

Good luck with that job hunt, George.

Google displays up to four ads in a search result, pushing legitimate links below the fold. On mobile, four ads renders organic results way beyond the point of user attention.

Ads are reserved by bidding on a cost-per-click. The final price is one cent above the next-highest bid, and it’s only incurred if a customer clicks the ad. If I really want my ad to appear first, I’ll set a high max bid. It’s unlikely that someone will click on one of my terrible ads, so actual advertising costs will be low.

Trademarks and AdWords

People generally don’t use AdWords to be a dick. More commonly, an advertiser will bid on AdWords for a competing brand’s trademark. For example, a search for “GEICO” could turn up ads for State Farm and Progressive Auto Insurance.

Not only can an advertiser trigger ads based on someone else’s trademark, the advertiser can even use the trademark in the ad itself. This is great for Google: Encourage bidding wars between competing brands and drive up the cost-per-click.

Trademark owners have tried to sue over competitive keyword advertising, but rarely win. To prevail on a trademark infringement, the plaintiff must prove that the defendants’ ad causes consumer confusion. “Confusion” is measured by ad click-through-rate; ie, the number of times users clicked on the ad versus total impressions. Minimum click-through-rates to characterize “confusion” have ranged from 2.6% to 10% [2].

These cases never win because NO ONE EVER CLICKS ADS. Most ad viewers aren’t even human!

Publicity Rights

What about non-trademarked keywords? I didn’t actually place ads on George’s name, but search results for my own name turn up ads for Equidate.

I don’t know what Equidate is (Tinder for horses, I presume?). Should I care that Equidate is trying to profit off my identity? Should I care that Google has sold my name as a keyword for ads?

In the US, we have something called a right of publicity, which is “the right of every person to control the commercial use of his or her identity [3].” It mostly comes up when a celebrity’s identity is used to imply endorsement. Like if I were to put Donald Trump’s face on a billboard for Imodium, for instance.

The fact that someone is using my name for AdWords suggests that it has some commercial value. But who owns it? My name is not unique in this universe; there might be a dozen of us out there. When someone violates my publicity rights, are they violating the publicity rights of all the Elaine-Ous? Should the Elaines join forces and file a class action lawsuit against Google?

Plaintiffs have brought AdWords lawsuits under state publicity rights laws. In Habush and Rottier v. Cannon & Dunphy [4], one Milwaukee law firm took out AdWords on the names of partners at a competing firm. Search queries for “Habush” or “Rottier” returned ads for the rival firm, Cannon & Dunphy. Being personal injury lawyers, Habush and Rottier sued Cannon & Dunphy, citing both publicity and privacy rights.

The Wisconsin Court of Appeals decided in favor of the defendants, comparing the AdWords strategy to opening a Cannon & Dunphy branch office next to an established Habush, Habush & Rottier office. That’s called proximity advertising, and it’s fine.

Internet law commentator Eric Goldman further supports the decision with an analogy to retail product placement [5]. Safeway places branded Cheetos next to generic store-brand cheese puffs. I frequently go to Safeway for the express purpose of buying Cheetos, only to leave with the store brand because it was cheaper. Frito-Lay might not like that, but that’s fine too.

Physical world comparisons are not fair. If Habush and Rottier really hate their new neighbor, they can pack up and move elsewhere. If Safeway decides to have branded Cheetos placed next to generic adult diapers, the manufacturer could stop distributing its product to Safeway’s retail outlet.

A person, or a trademark owner, cannot pack up their identity and remove it from Google. Privacy and publicity rights don’t always play well with Google’s First Amendment rights. The only real way to tamp down undesirable search results is to displace them by buying lots of ads, and placing higher bids than any unwanted advertisers.

Google wins again.

References:
1. Eugene Volokh, First Amendment Protection for Search Engine Search Results, 2012.
2. Lens.com, Inc. v. 1-800 Contacts, Inc., No. 11-1258 (Fed. Cir. Aug. 3, 2012)
3. J. Thomas McCarthy, The Human Persona as Commercial Property: The Right of Publicity, 19 Columbia-VLA Journal of Law & Arts 129 (1995).

4. Habush v. Cannon, 2013 WL 627251 (Wisc. App. Ct. Feb. 21, 2013)
5. Goldman, Eric, Brand Spillovers. Harvard Journal of Law and Technology, Vol. 22, 2008; Santa Clara Univ. Legal Studies Research Paper No. 09-01.

If you don’t know what “goatse” is, consider yourself blessed and move on.