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Thursday, April 05, 2007

Identity Theft: The Next Generation

By Dan Eastman
Utah State Senator, District 23

We passed a bill this session that would protect the value of trademarks held by Utah companies. People who own a trademark or hope to own one will love this new law. People who want to carjack someone else's trademark will hate it.

Electronic trademarks are protected around the globe, just not in the U.S. or Canada. There seem to be few applicable laws with teeth. Trademark violations on the internet are rampant. In some cases people invest millions on their trademark, only to have their customers’ on-line word searches shanghaied by a pirate who bought off the search engines.

John Battelle posted an excellent case-in-point on SearchBlog.

In my mind this amounts to little more than a creative new kind of identity theft. I don’t think that’s right.

This year the Utah Legislature fashioned an effective, private-sector solution.

We’ve been catching hell from the fringes on this issue (see here, here, and here).

I make no apologies. Utah is a highly tech-savvy, super business-friendly state. We have more computers per capita than anywhere else in the nation. It’s a wonderful place to live and a great place to do business.

This new law will make it even more so.

If you want to explore the issue a little deeper, this site discusses these kinds of trademark issues overseas. We'll also have some follow-up right here on the Senate Site.

[Update:] Matthew Prince discusses this new law here and here.


Anonymous Anonymous said...

"[T]his law is terrible policy created by a legislature out of control,"

Doesn't that describe lots of laws passed every year by our legislature. We've been doing this since before Davey Wilkenson's ill fated efforts implement the legistature's will. Not a year goes by we don't regularly hear that various laws being passed are unconstitutional.

I never saw this level of tilting at windmills in any other State I've lived in. This is just business as usual.

4/05/2007 8:16 PM  
Anonymous Anonymous said...

Here's an international example for you:

If you go to www.google.fr and type in the keyword "Louis Vuitton" (luxury leather goods), you will see that no sponsored links appear.

Now go to www.google.com and type in the same keyword. Because of current US trademark laws, advertisements appear all over the place.

This is due to a lawsuit that Louis Vuitton won against Google in the French courts.

4/05/2007 8:58 PM  
Anonymous Anonymous said...

Another company that is against Google's trademark selling practices is the hotel chain "Le Meridian". In this case, however, both google.fr and google.com do not show any advertisements when one searches for "Le Meridian". Hotels Meridian won this case in December of 2004, again showing that this is not a new idea.

The French courts gave Google 30 days to comply, which they did. This just further proves that the same rights that Google is complaining that Utah just extended to Utah trademark holders, the company has been affording mark holders overseas since at least 2004.

4/05/2007 9:09 PM  
Anonymous Anonymous said...

"Tilting at windmills"?

This is a major concern for a substantial number of large, legitimate businesses. While I'm not sure whether I agree with all the policy decisions made by the Utah legislature in this case, you should not downplay the importance of this issue.

4/05/2007 9:16 PM  
Anonymous Anonymous said...

Anonymous #4 wasn't me.

-- Anonymous #2 & #3

4/05/2007 9:48 PM  
Blogger theorris said...

So if I write a bad review of [TRADEMARK ITEM EXCLUDED OUT OF FEAR OF BEING SUED] I can lose my house?


4/05/2007 10:46 PM  
Anonymous Anonymous said...

"So if I write a bad review of [TRADEMARK ITEM EXCLUDED OUT OF FEAR OF BEING SUED] I can lose my house?"

RTFA. The law only affects the purchase and sale of trademarked terms sold by companies like Google. As I read it, there is absolutely no liability for writing about a product, even if it is a trademarked brand. For more info about how search term advertising works, check out Google's page on the subject:


K. Sparrow

4/05/2007 11:46 PM  
Blogger theorris said...

Not that it every really could happen to me, but what if my review became the number one hit on Google[TM] for said trade marked item? Am I now guilty of "car jacking" their brand? If not, how am I protected against a vicious pack of lawyers from Company X using this law to go after me because I have a popular web site that links to their product but is unfavorable to them?

4/06/2007 7:47 AM  
Blogger Jesse said...

While I agree that cybersquatting has become near intolerable (be it domain names or advertising keywords), I don't know that this legislation will affect any change. The Interstate Commerce Clause of the US Constitution won't allow this law to have the teeth needed to do any meaningful prosecution. It would have been much more effective to bring the concerns to the FTC or the WTO who have authority to do something about it.

Since ICANN already has a pretty clear policy on domain name disputes and the WTO already has a system of international trademark resolution (both of which supersede whatever laws are passed in the legislature), all that's left is the advertising keyword issue. Sadly, you'd be shot down there as well. Use of trademarks in comparative advertising is a well-established practice and is perfectly legal. For instance, if I search for Pepsi and get search results for Coke, that's a perfectly legit use of comparative advertising.

While this bill is no doubt well-intentioned, it is invalid in the face of international treaties and established case law. Don't you guys hire people to tell you these things?

4/06/2007 9:08 AM  
Anonymous Anonymous said...

Theorris, your review would be okay. The bill only prohibits the triggering of advertisements for a competing product, service, etc. of the same class as the item for which the mark is registered.

4/06/2007 9:40 AM  
Blogger theorris said...

Ok, I'll accept that. Will, however, the law be interpreted that way? What if in the same review I compared Brand X with Brand Y and came out in favor of Brand Y, yet a search engine still puts my review on top of the pile when someone searches for "Brand X." I do understand you are talking about "advertisements" appearing on the screen, but does the law differentiate between and advertisement and a link? If so, how? What if a lawyer for Brand X claims I am really just advertising for Brand Y? What if I really am? What if Brand Y paid me to trash Brand X? Will the law be able to tell the difference between an advertisement and "content?" It seems a bit muddled to me.

I realize the "what ifs" can go on forever on this, but I'm trying to understand how the law differentiates between different genres of writing (in this case a review and an advertisement.)

4/06/2007 10:41 AM  
Anonymous Anonymous said...

The law only applies to the advertisements that the search engines sell (in Google, it's the ads that appear in the right hand column next to a search). If you are not buying or selling trademarked terms to trigger an advertisement, this law does not create any liability for you.


4/06/2007 10:53 AM  
Blogger theorris said...

Sounds good then. It will be interesting to see how unscrupulous business folks might get around this--perhaps paying bloggers to trash one product and hype another. That's been done in politics, of course and perhaps is even being done in commerce (one often wonders about nasty reviews on Amazon, for example).

Thanks for your explanation, K.Sparrow.

4/06/2007 10:56 AM  
Blogger theorris said...

This post has been removed by the author.

4/06/2007 11:40 AM  
Blogger theorris said...

This post has been removed by the author.

4/06/2007 11:41 AM  
Blogger theorris said...

I have read the complete law now and am still concerned that it does not clearly define what an advertisement is and how advertisements differ from other links a search engine might provide such as the list of links they usually pop up. Advertisements in this sense are link(paid for links, granted). It would seem a clear definition has been left out of the law.

Oh well--guess that will be worked out in the courts.

4/06/2007 11:45 AM  
Blogger theorris said...

Yoish! 3 chances and I still didn't get it right. That penultimate sentence should read "Advertisements, in the sense of how they appear on web pages or in search engines, are links (paid for links, granted), just like other links that appear on said web pages." The law does not clearly define the difference.

4/06/2007 11:52 AM  
Blogger Phillip Rhodes said...

This is one of the most insipid, moronic, brain-dead things I have ever heard of in my life. For how "tech-savvy" Utah is claimed to be, it's apparent that their legislature is completely clueless.

This is a bad law in every regard, and will be totally ignored by the broader Internet community as it should be.

Maybe next time you guys can come up with a more reasonable law; something along the lines of "no man shall strike a woman riding on a horse within 300 yards of a courthouse after 9:00am on Sunday, in any month with an 'R' in it's name."

4/09/2007 2:20 PM  
Anonymous Anonymous said...

This is about as stupid a law as I can imagine a legislature passing. Surely you have something better to do with your time. Has anyone ever in the history of the internet not been able to find the websites of Ford, Sony, McDonalds, ect ect ad naseum. If you want to make laws, how about protecting people from corporations, rather than protecting corporations from people that don't like them. Utah seems to have adopted government by corporation.

4/09/2007 10:58 PM  
Blogger Stephen said...

Anonymous wrote:
"If you go to www.google.fr and type in the keyword "Louis Vuitton" (luxury leather goods), you will see that no sponsored links appear.

Now go to www.google.com and type in the same keyword. Because of current US trademark laws, advertisements appear all over the place."

But you can access www.google.com from France. The Utah law will technically require Google.com to detect users from Utah and serve different pages to them. This is an unfair burden to be placing on search engines. google.fr complies because it is in France. Forcing this law to apply to businesses not located in Utah, would, as "fringe" group EFF put it, burden interstate commerce.

4/09/2007 11:46 PM  
Anonymous Anonymous said...

Actually, clearly *EVIL* companies like Google, Yahoo, Amazon, et-al need to create a Utah-specific version of their sites
(www.amazon.utah.com), and then have some words with the Utah ISP's requiring them to redirect all normal traffic (www.amazon.com) to the Utah mirror sites.

In fact, the entire internet should be forced to do this for Utah- I mean, if we're going to enable special web-standards for the blind or deaf, why not the Utahns?

4/10/2007 12:01 AM  
Blogger Darren D. Johnson said...

Thanks for embarrassing the state of Utah, yet again. It's not enough to have polygamy and pyramid schemes associated with us - now we get to have this BS. That should REALLY help the business community here. Can't wait to vote you out of office.

4/10/2007 12:08 AM  
Blogger Timon Braun said...

"People who own a trademark or hope to own one will love this new law." Nice of you to openly abandon the pretense of acting on behalf of consumers. You could have been even clearer by adding: "The minute fraction of people who own pseudo-generic trademarks dislike the existence of a search algorithm that points its users to cheaper alternatives to their overbranded schlock. I view my job as serving the interests of these people, not consumers."

4/10/2007 12:15 AM  
Anonymous Anonymous said...

Take it a step further. Make it illegal to post billboards for Burger King near a McDonalds. Grocery stores shouldn't be allowed to place competitive items near each other (stores sell "relevant" shelf space to major brands, by the way). When I'm looking for a Pepsi, and there's a Coke on the shelf next to it, Coke is unfairly leveraging Pepsi's brand recognition to advertise their product.

The only fair solution is to force grocers to lay their stores out totally at random. Also, we should prevent consumers from bypassing the new layout by comparing ingredient lists or product descriptions. We need to remove all information from product packages other than non-descriptive trademarks. Otherwise, generic brands would benefit from the brand-recognition of competitive products. The packages should all be plain white plastic cubes so that manufacturers don't start color coding products or putting them in containers suggestive of the contents.

Seriously though, what planet is the Utah legislature from? How do they function in the real world? Have they never been inside of a store, let alone searched for products on-line?

If I walk into an Apple store and ask to buy Vista, what should they do? Blindfold me and escort me out of the store before I see an ad for MacOS? It's not like Google was selling Honda Civics with "BMW" written on them. I don't see how they were violating anyone's trademark...

4/10/2007 1:08 AM  
Anonymous Anonymous said...

Well, I took a look at your "excellent case-in-point", Mr. Eastman, and I can only conclude that you hate the Free Market.

Mazda putting an ad next to a search for Pontiac is just fair competition. Are you arguing that customers should not hear from both vendors before they make their decision as to which car to buy? Or are you arguing that advertisers should have the right to suppress information provided by competing advertisers?

You obviously do not understand concepts such as capitalism and free speech. You should go back to middle school where they teach these things.

4/10/2007 2:08 AM  
Blogger hikari said...

you have been slashdotted. enjoy your onslaught of flames you worthless chite.

4/10/2007 2:12 AM  
Blogger Jen Larkin said...

Frankly, this is an unconstitutional attack on business speech. I have the right as a business to advertise where I see fit and as such, if I advertise on an article that praises my competition, that is my right. Not only will this encourage fruadulent companies like SCO from attacking people who advertise their exposees of SCO's deceptions (they already don't care if their lawsuits are frivolous) but it creates an artificial monopoly to the fiunancial benefit of the state of Utah.

This bill shows an enormous misunderstanding of the way that advertising search terms work. Let's take Google AdWords for example. Google charges you more for your ads if your ads are less successful. If I am Ford and I advertise when people search for Ford, the only way that Honda could rank a higher ad is to pay out the wazoo to override Ford's naturally high rank for that search. This is saying that not only does Honda have no right to advertise when someone searches for Ford, but because Ford has a monopoly in search ads, they pay a significantly reduced rate due to lack of competition.

This is completely unconstitutional according to the lawyer for the body that passed it. It shows an ignorance of online advertising systems. It grants an unfair monopoly to people who register their trademarks with Utah, meaning companies that BRIBE the state with registration fees. It will cause Utah to be sued immediately, as in tomorrow and an immediate injunction to keep the law from taking effect is certainly emminent.

Of course, that this law was passed shows that this legistlature does not take the opinions of it's consitutents seriously anyway, so why would they care if it is enforcable. It only lines their pockets with re-election funds.

4/10/2007 2:50 AM  
Anonymous David Artman said...

I run a small online services company, for which I legitimately use generic keyword advertising. My company is small enough and services specific enough that the *only* cost effective way to advertise is by using a set of search terms, all of which are generic in terms of trademarks or other company names.

This law in practice would put me out of business. On a personal level, the stress just hearing about this law and the possible precedent is immense.

Senator Eastman -- and I do *sincerely* hope you read these comments -- would you really let legitimate American small companies that rely on keywords fail as casualties of this law? Other means of advertising aren't an option for us. We can't afford to blind advertise in any way, shape, or form.

I've spent just over two years of my life building something from scratch, and for lack of anything else to do about it, I'm here begging that you find a means to stop *only* the small percentage of people that are actually committing identity theft via keyword advertising. Making only advertising using registered trademarks would appear a much more fair and civil way to put a stop to such practice.

I realize that, if you only see keyword advertising as a form of identity theft, you may not have considered that there may be legitimate smaller businesses that rely on it for survival. I'm here telling you that this is *absolutely* the case.

I'm posting this publicly, hoping that by chance other small business owners that rely on keyword advertising might post here. After coming out and saying that I run a small company, and losing keyword advertising would ruin me, I would of course rather not post my company name / site here in public. Should you wish to contact me for an absolutely legitimate example of such a company and the exact keywords used, please write me at my personal domain email, david@inhousemall.com -- thank you.

David Artman

4/10/2007 5:11 AM  
Anonymous Harry Bakken said...

Our State Legislature has little understanding of how the Internet functions. If it were not so, they would not support the governor in proposing separate ports (or TLD's) for porn.

Once again the State dips their grimy fingers in a stinking pot of crap that they are powerless to change. How many laws do we have that are unenforceable? We have outlawed some of the most rediculous things in the name of protecting business and protecting children. This is another unenforceable Utah law.

Not only is it an unfair law to the search providers, but it is unfair to me as a consumer. If I want to search for a product or service, if there is an ad for a competitive alternative, I have the right as a consumer to choose to see it and explore it. If I am searching for a specific trademark, like Pepsi, they already have a huge advantage in that I know their trademark.

Trademarks are only violated if I manufacture a product and brand it by that mark or if I imply that it is the same product. Why citizens of Utah (and foreign countries) have to explain that to a legislator is pathetic. When I go to Target, I am often presented with store brands that say "Compare to (insert trademark here)". They acknowledge that it is not their mark, but they invite me, the consumer, to compare the ingredients, peformance, and cost and decide for myself. This is not getting shanghaied. If they made their store brand look and feel exactly like the trademarked product or took it a step further to call it by the trademark, that is illegal. Simply advertising against a name brand is called free enterprise.

4/10/2007 7:09 AM  
Anonymous Anonymous said...

The EFF is as much of a "fringe group" as you are a "fringe lawmaker."

Yeah, you are SO insightful because you are a politician. Not.

4/10/2007 7:29 AM  
Anonymous Anonymous said...

This legislations shows how trademark lawyers have created a completely seperate universe on the Internet that has no connection to the real world.

When I go into a drug store and I ask for tylenol they send me down aisle 7. Well what do I see?? Tylenol, advil, Bufferin, CVS brand, ... Well that store has now "carjacked" the Tylenol brand?

Then i went to a jewelry story and while I was looking at the Rolex watches the store owner mentioned the Seiko watches he had looked nice and were much cheaper. Another carjacking?

Untah is either has no common sense or there is some money changing hands soewhere.

4/10/2007 7:53 AM  
Anonymous Anonymous said...

Where do you draw the line? There are multiple companies that could have the same keyword that are also part of their already trademarked names. Consider this: A Utah company, Extra Space Storage might want to use the word Storage as their keyword for searches. However, Public Storage, a non-Utah company, has already registered it in Utah, thereby eliminating Extra Space Storage's posibility of using the same word to locate their services. The word is part of both companies' trademarked names, so who should have the right to use it exclusively? I think this law was a bad idea and should be removed asap.

-A concerned Utah voter

4/10/2007 8:11 AM  
Blogger Simon Howard said...

Actually, a Utah version of Google would be google.ut.us. However, it isn't entirely necessary to have a separate domain. You can do (limited) identification of location through examining IP address ranges. If the user accesses the page from inside Utah, they get the special Utah version.

I do agree with what other people have said here though: this is a pretty silly idea. It goes against the concepts of free trade and capitalism. It's pretty absurd to suggest that targeted advertising is a form of "identity theft" - Google's adverts are clearly identified as adverts and separated from the main search results. Is this perhaps just another example of the greedy obsession with "Intellectual Property" that has become so prevalent nowadays?

4/10/2007 8:43 AM  
Anonymous Anonymous said...

I was just offered a job in Salt Lake City.

Guess what job I will not take. This law is sooooo dumb.

This is just another form of an unfunded mandate being placed on people. If Utah really wants this to happen then they should pay Google and every other keyword advertiser to exlude by IP range any keyords in Utah.

Come on Utah it should only cost millions for you to do that. Place your money where your laws are.

4/10/2007 9:05 AM  
Anonymous Jason Carr said...

So let's look at the example you point to from John Battelle.

GM runs a TV ad that says, "Google Pontiac" for more info about the car. Mazda then buys an ad on that keyword that says, in effect, "Compare our car to theirs".

That seems reasonable to me. Is that causing consumer confusion? Not for anyone who's literate. Is Mazda misrepresenting themselves as Pontiac? Nope. So where, then, is the trademark infringement?

Let's be clear. Trademarks are meant to prevent consumer confusion about products. GM does not own the word 'Pontiac'. There is a city named Pontiac in Illinois and another one in Michigan. What if the Tourism bureaus of those cities (or perhaps a hotel or other business located there) wanted to advertise on the name of their city? This law would criminalize that in Utah if GM had already registered the electronic mark.

And it gets worse. This law would also affect legitimate resellers of Pontiac cars, used car dealers, and car ratings and reviews companies such as Carmax and Edmunds (companies that GM might actually want to be seen by consumers if they're giving positive reviews).

This law is short-sighted and ridiculous and proves that this legislature has no clue what it's doing with regards to internet regulation.

4/10/2007 9:10 AM  
Anonymous Anonymous said...

I am going to be very blunt and to the point.

All of you who are saying that this is a bad law for consumers really have a lack of neural activity in that space between your ears. Think about it for a second... I know that it is hard for you... but when someone types search parameters into a search engine, do you really think that they do not really know what they want to search for?

I mean come on... if I want to search for "Pepsi" and a bunch of "Coke" related content gets returned... it is not only not what I searched for but it is a waste of my bandwidth. For consumers this law will just mean that when they search for what they want to find... they will actually find it instead of some crap from someone else that is trying to "comparative advertise".

By saying that this law is garbage and hurts consumers is to say that all consumers... (especially you) could do with a vast increase in neural activity between their ears. I don't believe this is the case for most consumers; however, it is obvious that it is the case for you. Perhaps you could go back to school; back to grade 1 or 2 that should help you unexaggerated amounts.

4/10/2007 10:03 AM  
Anonymous Anonymous said...

Alright, all of you who think that this law is unfair to search providers raise your hand. Now go back to school or read a book on programming (which will probably necessitate you going back to school).

For this to be unfair to search providers would mean that it is difficult to do or places a substantial burden on them. Alas, this is not the case.

Most search providers already have the Geo IP software to know where you are when you access their site. Most, if not all, of them use this to serve up ads from businesses that are more local to you.

With this knowledge and after reading a programming book (probably after you go back to school for lack of active brain cells) it is simple to see that it would only take a few (2-5) extra lines of code (if their programmers know what they are doing) to accomplish complying with the law and thereby defeating any argument that it is difficult or burdensome on them to comply.

Quit making a fool of yourself. Get educated before you make a lame attempt to sway people to your idiotic way of thinking.

4/10/2007 10:48 AM  
Anonymous Amused said...

Quit making a fool of yourself. Get educated before you make a lame attempt to sway people to your idiotic way of thinking.

buddy, you're as clueless as you are rude.

4/10/2007 11:33 AM  
Anonymous Anonymous said...

Apparently you would be one of the aforementioned.

4/10/2007 11:38 AM  
Anonymous Anonymous said...

This law will seriously harm many 100% legitimate business. Thousands of companies have licenses with trademark holders to make or sell goods associated with trademarked brands.

How is it that we are so blind that we go ahead and block all of those companies from advertising their products which they have paid to get licensed?

Examples: Model manufacturers which make models of Beoing jets, Chevy cars, Dodge trucks, Polaris snowmobiles, Bombardier trains etc.. How can Utah be so stupid as to implement laws which hurt companies who pay for these licenses? Sure the law is only limited to Utah trademark holders now but this law which has no thought behind it, would very seriously harm thousands of Utah companies if implemented everywhere in the U.S.

What about those who sell iPod accessories? Those help iPod sales by making the iPod more uesful.

What about computer software companies who make software for Windows or Mac? Are they not allowed to be associated with Windows or Mac even though Microsoft and Apple want them to be? How dare Utah hurt Microsoft and Apple like this!

What Utah has done here is invalidate many previous contracts and business arrangements. This law is not constitutionally sound at all and should be immediately repealed.

Please think before you legislate!

4/10/2007 12:34 PM  
Anonymous Jason Carr said...

"it is simple to see that it would only take a few (2-5) extra lines of code (if their programmers know what they are doing) to accomplish complying with the law and thereby defeating any argument that it is difficult or burdensome on them to comply"

Ha ha ha ha ha!

If it's so easy, why did it take Yahoo (a cash-rich and talented organization) literally YEARS to add this functionality to their search ad platform?

Also, why is it that mighty Google, who is by far the most advanced in this space, thinks that I am searching from Colorado right now when in fact I am in Ohio?

Could it be that this problem is just a wee bit more complex than you think it is?

I would say so.

4/10/2007 12:38 PM  
Anonymous Hessian said...

We need a law to ban anyone born before Jan 1, 1970 to have anything to do with digital laws. (Judges Included)

4/10/2007 2:52 PM  
Anonymous Anonymous said...

So, if the auto manufacturers set up shop in Utah they could really hurt many of the Utah used car dealerships by limiting their ability to advertise.

That's just one of the many segments of the economy this could really hurt.

I could be wrong but it appears that Dan Eastman could utterly destroy the Utah economy!

4/10/2007 4:19 PM  
Anonymous Barry Hurd said...

The law at its fundamental point just goes to show that Google and many of the search engines have created a directly competitive model with where many real world laws originate.

Is this bad or good? Who knows.

The question becomes much more interesting when you compare the options of advertising and who makes the money. Google's entire model is shifting to profiting off the ability to sell someone else's brand.

The search company doesn't make anything off of Gizmo B, or Brand 42. It makes money off of individuals and companies who have spent long, hard hours to create a name brand.

I come from a phone directory background, where there were regulations about where a legal name or trademark could appear in the white and yellow pages. Why is Google different?

There are plenty of possible solutions for allowing legal representation of products and services (or even towns and family names) that do not infringe on a trademark.

In the offline world, companies are protected against other companies using spray paint to tarnish the image of their brand. In the real world it is called vandalism.

In the online world, Coke can buy Pepsi's brand words, throw up whatever advertising they like to degrade the Pepsi experience, and then lure possible customers away.

In the offline world, grocery stores could sell space next to Pepsi to Coke, but Pepsi has the right to take its product out of the store. This happened in some stores and is the reason for brand alliances in stores.

In the online realm, Pepsi has no ability to remove itself from Google. The Pepsi brand and intellectual property is a virtual hostage that Google is selling for the highest price.

The fundamental differences in the market and the fact that third parties are profiting from the direct sale of someones brand is the issue.

4/10/2007 4:36 PM  
Anonymous Anonymous said...


The simple answer is they wrote it wrong to begin. Had they written it to be dynamically served it would be an addition of one of the following examples.

if {condition = true} then
{do this}
{do that}
end if

OR they could have done

select {object or variable to check out}

case {variable = condition}
{do this}
case {variable = condition}
{do this other thing}
case default
{do that}
end select

It really doesn’t matter what programming language you use. Pretty much all have some form of either example available for use.


4/10/2007 4:39 PM  
Blogger Dave said...

This was not a very well-thought out law. You feel like it's only people on the fringes that are complaining because it's only us geeks that understand what this is all about. I'm all for protecting your trademark, but I'm also for free speech and comparative shopping. I also understand that the issue is a lot more complicated than you realize. This law is pointless and it won't hold up.

4/10/2007 5:57 PM  
Anonymous Jason Carr said...

Thanks Anonymous, I am familiar with if/then and conditional statements and I'm sure that, on some level, that is essentially what Google is doing.

Of course, to make a statement like that work, you have to be able to dynamically collect and parse all the information that needs to be fed into that function in order to determine the proper course of action.

You need to grab the user's IP and compare that to a database of IP address locations (which is easy to come by and maintain, I'm sure). There might also be ISP and country information in the user agent string, and so you need to be able to read that. In addition you'd need to check which Google domain the user is searching from and whether or not they used a location-specific word in their search (i.e. Provo), which implies another database of all (or most) US states, counties, cities, towns, villages, neighborhoods, and zip codes. You'd also need to constantly update those databases to make sure they're accurate. Finally you'd need to check the keyword entered against the database of Utahn electronic marks that you will pay to maintain on you own servers for the sake of speed and reliability.

You also need to do all that in such a way as to make the time it takes to process that info negligible so that the quality of your service doesn't suffer. Google has accomplished that by building a large number of multi-million dollar datacenters all across the globe (something that Microsoft and Yahoo are still catching up with and that the smaller players have no hope of achieving).

All of this, however, is irrelevant if the user is working through a proxy server, using an anonymizing service like TOR, or is simply logged in through a corporate network that broadcasts an IP from some other location. In any of those cases, and many others, the location data that Google has to parse will be incorrect or non-existant.

If the information that Google gathers is incorrect, it may inadvertantly break the law (and have no way to know if it did or not). If the information doesn't exist at all, it could either serve the ad and risk that the user might be in Utah or not serve the ad at all, potentially denying an advertiser their perfectly legal chance to compete and a user their perfectly legal chance to compare services (oh, and they would lose revenue too).

So yeah, it's that easy.

4/10/2007 6:33 PM  
Anonymous Anonymous said...

This law is silly. This doesn't effect search results, only advertising links. I really don't need this protection.

Utah lawmakers, I'm looking at you Hatch, are embarrassing when it comes to any technology related law.

4/10/2007 7:45 PM  
Anonymous Anonymous said...

This law clearly demonstrates the complete and total ignorance of lawmakers in Utah with regards not only to the Internet, but pretty much everything else.

"carjack", "shanghaied by a pirate", who "bought off" the search engine???

Never in my life have I heard anything so rediculous coming from a so-called agent of the government.

People in the rest of the world are going to wonder what kind of retards are running the show in that state. Must have been taking Internet training from your Mr. Alaska Internet 'expert' -- who has problems with the "tubes" that run the Internet...

4/11/2007 2:53 AM  
Anonymous Anonymous said...

"Utah is a highly tech-savvy, super business-friendly state." <-- After reading this, during the ensuing hysterics I think I injured myself.

4/11/2007 3:10 AM  
Blogger GreedyCapitalist said...

It's not illegal to place a Honda billboard next to a Toyota dealership, so why should it be illegal to place a Honda ad next to a search result for Toyota.com?

Is this law "business friendly" or just "big-business monopoly friendly"?

This is an atrocious attack on my freedom online. As a Texas advertiser, I now have to contend with incompetent legislators in Utah trying to ban my online speech.

This law should be thrown out in court and Senator Eastman needs to be thrown out of office.

4/11/2007 9:05 AM  
Anonymous Anonymous said...

So does this mean Microsoft can no longer purchase ads on every E magazine that is covering linux? and does it mean that if I google Linux the "software ads" won't be mostly Microsoft?

Some how the lack of common sense is not surprising, Utah home of SCO, the Ralph Yarrow type laws, and everthing else really stupid? that is not the state motto that all of the nice people I know that live there want.


4/11/2007 10:41 AM  
Blogger Jeremy said...

See what the Tribune had to say about it:

It looks like there's more to this law than just the guise of "trademark protection". If you read the article you'll find that the main proponent of the bill is looking for a contract to help enforce the law... I guess the legislature doesn't consider that a conflict of interest.

I really wish our state legislators would stop trying to regulate things they don't understand. What upsets me more than anything is that they're wasting my tax dollars!!!

Good luck winning this on appeal.

4/11/2007 12:32 PM  
Anonymous Anonymous said...

Google should just leave Utah out of searches. There appear to be too many Morons living there anyway.

4/11/2007 5:49 PM  
Anonymous Wanderer said...

The individual with the fondness for boldface, the author of the law, and a couple of other people who (perhaps in confusion about trademark law) support them, are missing a couple of facts:

First of all, if you search for "Pepsi" you'll get search results for Pepsi. This law only covers the ads that Google puts in that little sidebar.

In fact, someone selling Coke could load up a website with Pepsi-related keywords and come up higher on the search results than your desired Pepsi website, and this law couldn't touch them. So, this law will do nothing to improve search results.

Its goal, its entire goal, is to reduce competition in the marketplace by restricting the information consumers can see. As someone pointed out, Coke is sold next to Pepsi, and store-brand soda is sold next to both.

Second, there seems to be a misunderstanding on some parts (including that of the author of the law) on what a trademark really is, and what it entitles you to. (Note: I am not a lawyer; I am, however, the owner of several trademarks) If you have a trademark -- UberPop, for instance -- you do not own the right to that word in all possible uses and contexts. You own the right to sell your products as UberPop. If you have tradmarked UberPop as the brand name for your soda, Nobody else is allowed to sell soda and call it UberPop. That does not mean that you can control where, when, or how people talk about UberPop. Your competitors are perfectly within their rights to say "our soda has more caffeine than UberPop" (assuming it does, of course). A tradmark protects your right to label your products with that trademark. A great deal of confusion (including among some lawmakers) has come about by people who don't understand that. If someone isn't selling soda and calling it UberPop, or otherwise trying to pretend that it's yours, they're not infringing your trademark.

I do hope that nobody is seriously proposing that the United States model its laws on the laws of France, for the love of all that's good. The French legal system is ... well, I'll just say "not a good fit with the US Constitution" and leave it at that.

By the way, I am also a computer programmer, and no, it is not a matter of a handful of lines of code.

"People who own a trademark or hope to own one will love this new law."

I own several. I hate this new law.

I sell my products because they're better than my competitors' products -- not because some law prevents my customers from knowing that my competitors' products exist. (note: I've never bought a Google AdWord in my life)

And that is the essence of this law: To benefit a handful of companies by prohibiting their competitors from advertising where their customers might see it.

If someone is advertising their products as genuine Louis Vuitton when they're not, that's trademark infringement.

If someone buys a billboard right next to a store that's selling Louis Vuitton products and uses it to advertise their competing brand, that's business.

It's the second case that this law is intended to prohibit.

It's not right, it's not sane, and I'd give good odds it's not constitutional. And as a business owner (one whose products do not in any way feed off the popularity of anyone else's brand) I can say that it makes Utah look like a much less business-friendly place to me.

4/12/2007 9:34 AM  
Anonymous Anonymous said...

Mr Eastman, I'd have to say that you are the one 'on the fringe' on this one. This law is virtually unenforcible, and will fade into obscurity like Internet Regulation bills of the past.

4/12/2007 2:05 PM  
Anonymous Anonymous said...

Trade Mark infringement is handled as a civil matter, through lawsuits. I see no reason why this should be any different. If I use a Coke symbol to sell my product, Coca-cola will probably sue me, as they should. If Coke finds that someone is using their trademarked words on Google, they can sue. There's no difference. This law will only waste Utah Taxpayers' money in the courtroom.

4/12/2007 2:14 PM  
Anonymous Anonymous said...

Two comparative scenarios to show how this law is flawed (It will ruin the Internet for Utahans.):

#1: The Concierge Desk:
When I go to a hotel concierge and ask, "Where's the closest P.F. Chang's?" He'll probably say, "Well, it's right on A street (Search Results), but there is a far-better little Chinese restaurant I like over on B street (Sponsored Result)."

Is Utah going to legislate all of its concierge desks into illegality, as well?

Google is nothing more than an online concierge that we visit when we are wanting to find something. They gladly do the service of pointing us in the right direction, but they also offer some additional advice on the side, literally. True, they get their kick-backs on the side, but hey, you, the consumer, make the final decision of whether to accept their advice.

Only difference, Google (and search engines) are kind enough to clearly label their "side advice" as "sponsored results."

#2 "The Supermarket":
The government has no right telling Google or your supermarket what to display on store shelves. When a consumer walks into Google and asks to be pointed to a certain brand of cough syrup, Google has every right to stock the neighboring shelves with competitors' products (Good placement costs brands more). In the end, the consumer picks-up/clicks on the product of his/her own choosing!!!

Utah lawmakers passed a bad law, on the bad advice of bad men looking to score a bad-ass contract!

4/12/2007 2:36 PM  
Anonymous The RNC said...

Wow, good soundbite. It's not true, but do you want a job?

4/12/2007 2:39 PM  
Anonymous Dustin said...

It seems to me that big companies could use this law to their advantage. OPlease remember the little guy - those busnisses are important too.

4/12/2007 7:20 PM  
Anonymous TechSavvyUtahn said...

First Orrin Hatch wants to hack our computers. Now this search engine non-sense. Makes me kind of embarrassed to be from Utah. I think I'll go bury my head in the salt flats somewhere. Who knows which legislatures I'll see there with their head planted firmly in the salt.

4/13/2007 7:54 AM  
Anonymous TechSavvyUtahn said...

Strange. I posted the last comment at 4/13/2007 8:50 AM but the time stamp is 4/12/2007 7:20 PM. Weird. This posting was done at 4/13/2007 9:00 A.M. Lets see what time it actually turns out to be on the posting. Utah can't even keep its clocks accurate, let alone legislate anything more technologically advanced than that.

4/13/2007 8:00 AM  
Blogger The Senate Site said...

Things that make you say Hmmmm...

4/24/2007 11:20 AM  
Anonymous D McCollum said...

I haven't seen it said yet, but there are many times I search a trademark to find competing products only because I can't recall the competition's trademarks...this law effectively kills that.

Who ever said every search ona trademark is for that specific product, and only that specific product?

4/06/2008 10:51 PM  
Anonymous Anonymous said...

Thanks for embarrassing the state of Utah, yet again.


Wow, check out this site called www.fluc.com
. Free SMS and free mobile ads!! Its fantastic

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