The Blowfish Blog

[The Pro Circuit] Google, Porn and Trademark

For businesspeople in porn, search engines are critically important. Without access to a lot of the traditional marketing channels, like advertising, that non-erotic products have, adult companies must rely on customers finding their products by, well, searching for them.

Overall, this is not a bad thing. Search engines are more user-directed and friendly to sexual content than almost any advertising outlet. If someone searches for “facesitting” on Google, they’re going to get something related to the sexual fetish of facesitting — provided they remember to turn off Safe Search, or they’ll get a bunch of crap about circus performers doing headstands, which might be just as interesting but was not what the user was looking for.

For most of the adult industry’s lifetime, that interest in facesitting (or whatever) would have been served by much less efficient means — for instance, by the interested party going to the local porno shop and looking for mags about facesitting, or going to the front of the store and saying “Hey, weird biker dude at the counter smoking a cigar and reaching for his baseball bat because I’m talking to you, why doesn’t your store stock some facesitting magazines? That kind of thing really makes my dick hard.” Not a pleasant or efficient way to acquire your erotic entertainment, and far from easily accessible to all populations. Today’s version makes a hell of a lot more sense.

However, search engines are remarkably un-transparent. And king-of-the-heap Google is in many ways the least transparent of them all. According to a Texas lawsuit against Google by a company called Fire Pond, at least one of Google’s techniques violates federal trademark protections.

At issue is something called Google Adwords, or, in a broader sense, pay-per-click advertising. For many people who have worked in marketing for the adult industry on the web, search engine pay-per-click marketing is a fact of life. In the minds of many industry marketers, it’s a required adjunct to designing a good page that shows up well in search engines. Having a good page is all well and good, but it won’t necessarily guarantee you come up first in search results. What will? Paying money. In some cases, lots and lots of money.

In any “Pay Per Click” system, and specifically in Google Adwords, a company pays Google so that a search, for, say “Fire Pond,” a company that “offers the only true multi-tenant configure, price, quote solution featuring our robust product configurator [sic] software and unqiue [sic] proposal generation—” (huh!?!?!?) — will display to the consumer a “search engine result” that is not really a search engine result per se. It is in fact a paid ad, for either Fire Pond — if they’re willing to cough up the dough — or for one or more of Fire Pond’s competitors, if these competitors are willing to “bid” more money than Fire Pond is for each click delivered through this system.

The results look either almost the same or slightly different than unpaid results, which are called “natural” search results. The consumer probably has no idea whether he or she is seeing a natural or a pay-per-click result because, let’s face it, the consumer almost certainly doesn’t give a fuck.

The utility of buying competitor keywords is debatable. To my way of thinking, it doesn’t make a lot of sense for Playboy.com, for instance, to purchase the keyword “Penthouse,” which will result in them seeing a spike in traffic from people looking for Penthouse Magazine and therefore being disappointed that there’s no pissing. One does not equal the other. However, companies certainly do this kind of marketing quite a lot, and Google makes a pretty penny on it.

The problem is, “Penthouse” is a trademark. The people who own the Penthouse trademark — or the Google trademark, or the Netflix trademark or whatever — have gone to a lot of trouble and expense to secure rights to that trademark, and to continue to protect them. In fact, trademark owners must protect their own trademarks, because if they don’t aggressively do so, their failure to protect their trademarks can be used later in a trademark infringement case under certain circumstances to argue that the trademark has entered into the public domain, which is essentially irreversible. Big companies take trademark protection seriously, because if you fuck it up, you can lose your intellectual property rights to your brand name.

Therefore, isn’t it a trademark violation for Google to allow, say, Macy’s to bid on paid search results on Gimbel’s trademark? Well, Fire Pond sure thinks so, which is why they filed suit. Whatever they sell (and after visiting their site, I’m still not sure what it is — software, I think?), their case could have a huge impact on web marketing in the adult industry. This could potentially end up as a class-action suit — traditionally the most difficult kind of suit to defend against, and a nightmare for most big businesses. Therefore, it could have far-reaching effects both for Google and for people who market porn on the web.

As to whether selling access to a consumer who searches for a competitor’s company is a trademark violation — nobody knows. But Google knows it’s on dangerous ground in doing so. With consummate weirdness, Google does not allow Penthouse to use the targeted term — let’s say, the trademarked term “Spooge Industries” — in the targeted ad itself paid for by competitor “Manseed Incorporated.” That’s true even though that ad is showing up only because the surfer searched for the term “Spooge Industries”. Weird, huh?

Therefore, the question becomes, “is it legal to sell the ability to responding to the customer’s use of a trademark if the trademark itself is not used in the response?” In other words, they’re playing a legal fandango, because in a way the only person using the trademark itself — in a consumer-facing way — is the consumer. The fact that Google just sold access to the consumer is another matter entirely.

Google’s view that it’s legal to sell companies pay-per-click ads for a competitor’s trademarks might be based on court decisions relating to spyware programs that take a search engine request for one company and use it to provide a popup ad for that company’s competitor. Apparently, that’s been deemed legally OK.

But the whole thing is made even weirder by the fact that in addition to search engine marketing, the vast majority of adult content sites (that is to say, porn sites) rely on “affiliates” for their traffic and sales. With many sites, this generates more than half their traffic and/or sales. These affiliates get a bounty on every buyer they send to a site. Those affiliates also buy pay-per-click results from Google — so in many cases an adult company is bidding for search engine results against its own affiliates.

Confused yet? You should be. This has far-ranging implications not just for porn but for how information gets to the consumer. Trademarks are just one kind of intellectual property that is subject to access and use by search engines with no monetary obligation to the owner of that intellectual property. This is a fairly profound shift in culture, as far as I’m concerned.

Take books, for example. Google has already established with their Google Books service that they intend to make the interior of every book published searchable on Google. I’ve already used this service to avoid trips to the library when I need to quote obscure texts on Alfred Jarry for nonfiction articles. Helpful, very helpful — and not at all what the book publishers had in mind when the published a given book.

So, overall, is it a good thing or a bad thing to be able to get to the interior of any book without either paying for it or leaving my chair and paying for it in the library? Is it a bad thing or a good thing to be able to buy my competitor’s trademark and poach customers who are looking for that competitor — if I’m willing to pay for acquiring those customers, and I have a good enough product to tempt them?

Fuck if I know. Google seems to think that making information available online for the price of the right search string supports their belief, derived from the early cyberpunks, that “Information wants to be free.”

But there’s free, and there’s free. And free enterprise might equal free expression — but as often as not, it doesn’t.

If anything gets legally decided in the Fire Pond case, it could affect the way trademarks are marketed in search engines. But for the consumer, it won’t ultimately make a difference — they’ll still get the information the powers-that-be want them to get, and how that information is doled out will be as much about dollars and cents as about the accuracy of the information.

Thomas Roche blogs about crime novels and robopr0n at Thomasroche.com.

Share This

This entry was posted on Wednesday, 20 May 2009 at 12:00 am and is filed under Industry. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.