Farrell v. Schoemaker

Filing 3

SUPPLEMENT regarding Complaint 1 by Attorney J. Scott Paul on behalf of Plaintiff Keyen Farrell. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Paul, J.)

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Joogle Employee Alleged To Have Bypassed AdWords Trademark Policy For Own Benefit Page 1 of 10 8'uy rele i.aro HIIII. SEARCH NEWS, COLUMNS, FEATURES . EirslIimeYisit'LStiitlH~reJ . Home . News E~at.Ie~ . Columns . How To N~yvsletters_~E~ed_s . Members Only . Events C.omm:i,mity . AhmitlJ s e a Search En ine Land member & access videos & more... MEMllER_LQQlN__?IBEQME_A_MEMllER_? GQQgleEmplQyeeAllegedTQ Have Bypassed AdW ords Trademark Policy For Own Benefit \pr 8, 2009 at 3:01pm ET by Danny Sullvan wrell-known internet marketer Jeremy "ShoeMoney" Schoemaker has fied suit against Keyen Farell, apparently a Joogle employee alleged to have used Schoemaker's US-registered trademark in search ads on Google. While issues )ver trademarks in search ads are heating up, the bigger issue in the case is why Google itself didn't take action to stop he ads and whether an employee did indeed access Schoemaker's AdWords account to gain competitive data. Joogle's trademark policy allows for trademarks to "trigger" ads - make ads appear when a trademark word is nvolved in a search query - but it prohibits advertisers from using trademarks in the title or description of ad copy. rhat s the core of Schoemaker' s Qllj21aint (PD F fie) - that ads were showing for his nickname, "ShoeMoney," hich is also the name of his web site and a registered trademark. ~or example, here's a screenshot Schoemaker provided of the ad using "ShoeMoney" in the title from last week: ." ." ; co 'i EXHIBIT 'c" o ~ ~ CD L: /0 /"11\1\1\ ,++.../lria.n..nk.o_n-:_.oln_,. "..--/..____1_ ____l....H.._ i....._,......... ,.........__.... 1 ~"C(\ 300gle Employee Alleged To Have Bypassed AdWords Trademark Policy For Own Benefit Page 2 of 10 'iJlt~lm:\l* These ads have been showing for the past few months, Schoemaker told me via 1M. They shouldn't have, given that Schoemaker previously had filed a trademark complaint action with Google back in 2007. On November 1,2007, Schoemaker was told (according to an email he forwarded to me): Google AdWords Trademark Team Thu, Nov 1,2007 at 4:13 PM Hello Jeremy, Thank you for sending us your trademark complaint letter. Your complaint has been processed and the ad texts in question no longer include your trademark: SHOEMONEY. Please note, we only processed the exact trademark you submitted. If you would like us to investigate variations or misspellngs of your trademark, please supply us with a list of the exact variations or misspellngs and we wil review them. Please do not hesitate to contact us with any additional questions or concerns. That prevented anyone from using the word "shoemoney" in their ads, as you can see is stil the case in the screenshot below, when I tried to create an ad with the word earlier today: i.++_.llnnn~ni.n~n:~nln~ n~~ 1~~~~ln n~_l~,,~~ i."_nnn~ nn,~~n 1 '7'1,,0 t:/Q /'(\(\0 Joogle Employee Alleged To Have Bypassed AdWords Trademark Policy For Own Benefit Page 3 of 10 -l!1i;fexl.adl.~ l~ygil.lilitl!l!N8V1 LOlb~IaJ19sSimf~bll-'.fCI~1P__!ll; eam! HeaEl: . ,a how was it that these ads started showing? Somehow, the advertiser got an exception or found some other way round Google's block. Since the advertiser also appears to be a Google employee, that raises serious issues about Joogle's own internal policing. iS the IebCrlihanile on the case explains, at first Schoemaker couldn't tell who was behind the ads. While the ad ointed at myincentivewebsite.com, contact details for that site were masked using a privacy address for the domain ame registration. So Schoemaker got a subpoena demanding that that the site's web host hand over the advertiser's ame and contact details, he told me. iccording to Schoemaker's lawsuit, the advertiser was Keyen FarelL. As TechCruch explains furher, Schoemaker aid he spoke with Farell, who apparently denied any wrongdoing. As part of hared a list of that conversation, Farell apparently terms he was targeting - which raised alarms with Schoemaker, as they were similar to his own list. listed himself as working as a Google idWords account strategist. That's since changed (Schoemaker says it was changed the day he fied suit), but here's ow it looked from a screenshot that Schoemaker sent me: )oing more checking, Schoemaker found a LinkedIn )2rofi~ where Farrell ++_./IClC'n.."'l".o_rr:_o.ln_rl ,...../rr__rrl.o .c~_l_.u,__ t....._n....,.,. n.........__.... 1 '7')i:o L: 10 1"11\1\1\ Joogle Employee Alleged To Have Bypassed AdWords Trademark Policy For Own Benefit Page 4 of 10 ii_ ~lijf~ ~.~~ Ci-l .,i..$lr.tW..i~ Jli.~i-~ Uiike(! ei.l"~~.."'__ i.ii ~."".~ ~ ~li:t~.iimii)'8 experIence !i....n. st\I i~~yI;~~..""..i_:00",~ ai~. ;ll I .. K-.!J~)UI'Rrs' !due81lon ~ 1:1iC6l. JO :":xf c..,-.-----,"'-;".,""'"MN;o"~;;z;;;",=_; ';-".';-;;"-;;'";."-"""w",~,;-;-,,;;,,;;,,;/,,__I',,;_ -';";-'M,,,;;,,,,,W-;,,'-;-;-';",' ~ ~llrlJl$Conlar;S.lttn9$ . -l-l ..~~ arrell is listed as an employee with Google's New York office, so all indications are that he does indeed work for 'oogle. When I called and selected him by name from the automated company directory, I got to his voicemail that arted, "Hi, this is Keyen with Google." Farrell was also feamred. in a Spring 2006 aricle from Colby College about )w he used Google' s ad systems to run an online business that he said put him "in the top one percent in income in the .S." If that was the case, of course, it makes you wonder why he apparently later worked what appears to be a lowvel job at Google. alking with Schoemaker, he stressed that he assumes Google itself had no knowledge of ling suit against Google itself. Farrell's actions, nor is he Our goal in this is not for financial gain but to defend our trademark that we have spent many years building trust with. People (commenting on) the TechCrunch story talk like Google is going to write me a big check, but that is just sily. This is not going to be a cash flow positive thing for us I am prett sure. And I do not honestly think nor do we have any evidence that Google was involved or had knowledge of this corrpt employee igree - Google probably wasn't aware of what was going on. But it stil raises questions about how people are able bypass trademark blocks and how secure AdWords accounts are. Clearly an AdWords specialist would need the )ilty to review client accounts, but it's stil disturbing to think that they could be snooping for reasons unconnected ith actually helping those clients. s for Farrell, Schoemaker's suit seeks: An injunction preventing the use of "shoemoney" in ad text An accounting of revenue earned by using the "shoemoney" term . Damages to be determined at trial . Attorney fees and costs ve asked both Google and Farrell for comment but haven't heard back from either yet. )stscript: Google has sent: tn'//l:f"i:r~hf"nainpli:nrl I'l\rn/rrl\l\rrl"'_"'rn..ln""'''_i.,,..nnn~ nn,~~n 1,.,.cn Joogle Employee Alleged To Have Bypassed AdWords Trademark Policy For Own Benefit Page 5 of 10 While we take this kind of allegation seriously, we're not able to comment on specifics right now. !aIl)'SllUiyall is editor-in-chief of Search Engine Land. He's a widely cited authority on search engines and search iarketing issues who has covered the space since 1996. Danny also oversees Search Engine Land's SMX: Search 1arketing Expo conference series, maintains a personal blog called Daggle and can be followed on Twitter here. ~e__mQr~__atlil~fLliy__D_allyJillUiy-an_2: hare, Bookmark & Discuss This Article mail this Sphinn It! Google Bookmark This Save to del.cio.us (1 save) Stuble It! Digg This! (8 Diggs, 1 :miment) SbJlI~QnE~ehQQk Twit Thisl Bllzz_U-i! lore: Share This S Keep Updated: News Via Emaill News Via RSS Feed I News Via Twitter See more stories like this in the Members Library! Check out the Google: AdWords, Google: YouTube & Video, Legal: Trademarks, Top News sections of the Members Library where this story is fied. Members also get access to exclusive video content, a members-only weekly & monthly newsletter, plus more. Check out all the benefits! assed AdWords Trademark Policy For Own Benefit ::000, Aprilm8tb,2QQ9atS:18pmET: 'the employee's alleged actions aren'tA breach of trust Grounds for dismissal rren what are they? )ugdale, April9tb.2QQ9atJ2;Q4amET: row, this story is amazing and a little scary at the same time. Sounds like Jeremy has a prett good case. tn'//~p~rl'hpnCT;npl~nrll'l\m/CT""nl"'_"'m..l"u",,, i."_nnn~ nn,~~n 1 '7'"CCI /" In "'\"A.r' Google Employee Alleged To Have Bypassed AdWords Trademark Policy For Own Benefit Page 6 of 10 If this actually goes to trial and Google has to show some of their systems in court it wil be very interesting. Perhaps Google's black box wil be a little less black after this. Chris Smith, April 9th. 2009 at 10:24 am ET: lrelli1lmll~mb~r since 01/2009 I have a theory as to how the trademark block was bypassed: Google may allow ads to target trademark keywords, while the system checks against trademarks in static text. However, I think that the ad may have been set up dynamically to parse the search keyword into the ad copysomething their blocks may not've been set to detect. Yet. Qbim)2rjl~-ti, Amil....9th,...2009...atJ..;.SS...pmEI: Premium member since 01/2009 Good to see Schoemaker working to protect his brand, it must be frstrating as hell to keep tabs on all the activity of those trying to profit off of his name. Hope this goes well for him. JezC, April 10th. 2009 at 10:12 am ET: :fChris Smith - Dynamic Keyword Insertion can block trademarked terms as Keywords. It isn't a perfect mechanism, though. A.dditionally, human error can result in similar problems. A client of mine with a UK national brand was unable to use their own name, while a US dentist was advertising with the trademarked name in the UK (and was wildly unlikely to :ittract customers for a radically different product). Mistakes happen, as well as intentional activity. Both problems were caused by Google staff checking boxes adjacent to the ones that should have been checked. rhe article describes something that sounds intentional and malicious, though. 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Google, Yahoo & Microsoft logos trademark respective companies and used with permission. ittn' / /o;pi:r('.hpnainpli:nrl ('I\ni /nl\l\nlp_pninl"upp_hun.,C'C'arl_"rln,,,..rln 1 '7'11:0 10 ,"\1\\('

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