Even if you do happen to live in Utah, the chances are you will not have noticed a little law by the name of SB 236 which was passed without so much as a whisper of complaint or fuss last month. If you happen to run a web based business in Utah, however, then Senator Dan Eastman is most likely not going to be your favorite person when you discover just what this law means.
Like many politicians, the good senator manages to put an unhealthy spin on technological subjects that are not properly understood nor appreciated it would seem. Indeed, Sen. Eastman has gone on record as describing keyword advertising as being a creative new kind of identity theft. Cool and trendy sound bytes no doubt, but of little real world value.
There are already plenty of rules put in place by Google, Yahoo, Microsoft and others to prevent the misuse of protected trademarks within keywords, and so long as competitive keyword advertising is truthful I fail to see the big deal. Certainly there is little evidence of the kind of rife hijacking of commercial identity, forceful misdirection of trade from one business to another, which this law is meant to prevent.
The fact that Sen. Eastman has stated that “Utah is a highly tech-savvy, super business-friendly state” would seem to point towards the real reason behind this law being passed. It is meant to give powerful business interests a warm fuzzy feeling, while at the same time sticking it to the consumer who will ultimately be faced with less legitimate choice when searching for people to do business with online. Or at least it would do if there were any real way of enforcing it, which as far as I can see there isn’t out here in the real world.
Google knows a lot of things, but it doesn’t know for sure if you are in Utah or not. Nor is it compelled to let the good Senator know when an advertising campaign runs in Utah using keyword advertising. Quite apart from the fact that, as has already been suggested to me by more than a few folk, the law could well be in violation of the US Constitution. I will leave that particular argument to those who know it better than I (it is something to do with interstate commerce protection I believe.)
What it will do is put money in the bank for whoever ends up running the new ‘registration mark’ registry and database, which will charge as much as $250 per year to associate an electronic registration mark against your Utah based business and give you the legal right to take action against anyone using that mark in a method that might cause confusion. Heck, the law causes exactly that, can we sue the Senator? And anyway, what exactly is the difference between this and a registered trademark again? Oh yes, that would the small fact that Federal rulings in the US have already stated that trademark law has not been violated when ads are linked to terms that are also trademarks.
Danny Sullivan over at sums it up best when he says that the law would require that “a large Internet search engine must first determine whether a user is located within Utah. If the user is in Utah, the Internet search engine must check search terms against Utah's registry of trademarks to prevent the unlawful triggering of advertising. Literally millions of search requests from locations worldwide each day would be subject to verification of location. Once verified, the search engine would then use a separate process for delivering advertising to Utah. This results in multiple systems of advertisement for a search engine to manage.”
