Politics and IP

This extraordinary press release from the minority on the House Energy and Commerce Committee uses images from The Simpsons. Fox may be able to deter these uses, but so far is not doing anything. However, anti-MoveOn.org forces have not been so lucky–Google has prevented them from using the name “MoveOn” in their ads, ostensibly because of a neutral trademark policy that permits a mark owner to apply to prevent the use of its marks in others’ ads:

Recently, representatives of Senator Susan Collins’ Senate re-election campaign tried to place an ad on Google that included a reference to MoveOn.org, a political group. The text of this ad was rejected by our system because of our trademark policy, not because of its political content.

Under our trademark policy, a registered trademark owner may request that its mark not be used in the text of other parties’ ads. Some time ago, MoveOn.org submitted a request to Google that its trademark not be used in any ads, and as a result our advertiser support team offered instructions on how Senator Collins’ campaign could edit and resubmit its ad.

Any company or organization — regardless of political affiliation — could do what MoveOn did and thereby prevent advertisers from running ads that include their trademarks in ad texts. . . . [I]f ads are running on Google that include trademark terms in their text, either the trademark owner has not submitted a complaint, or the advertiser has been authorized to use the trademark.

Here’s a response from the president of the Media Bloggers Association:

There is no basis in trademark law to support MoveOn’s claim. Rather that blindly accept their claim why not ask them to explain the legal basis for their claim. Once you realize that MoveOn does not have a valid legal claim you can put Senator Collins’ ads back up.

Many questionable IP claims can gum up the works of free expression. I don’t understand why Google here would prevent what looks to be a classic case of nominative use. If the anti-MoveOn.org material appeared at the top of the unpaid results, I’d be in favor of giving MoveOn.org some opportunity to respond. But the paid ads described here don’t tend to frustrate people’s efforts to learn more about MoveOn.org.

Of course, the Collins campaign can make its case elsewhere. But “Google’s share of Web searches in the United States was 67 percent” in September, and such a dominant company may well need to revisit its policies. They should avoid unnecessarily restricting access to what may be becoming an essential facility. . . . or at least lobby for some explicit safe harbor.

UPDATE: MoveOn has backed down and will not object to the ads:

“We don’t want to support a policy that denies people freedom of expression,” says Jennifer Lindenauer, MoveOn.org’s communications director.

H/T: Eric Goldman.

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