As we have all become painfully aware, the one constant with search engines these

days is change.

I don’t think there is a search engine in existence, more about change than Google.

In a great place to be, Google has excess cash, and instead of putting the money back

into search engine related ventures, Google is exploring other venues.

Google, who uses solar energy at its main office, is investing $5 billion in a network of

deepwater transmission lines; designed to facilitate wind-generated electricity for

half a million homes, and bring this wind power from offshore wind farms on the East

Coast.Google has recently established itself as more or less a “green” company, and

has the money to back its initiatives.

Not all the initiatives are power or wind related however; Google has reportedly been

testing cars that do not require people to operate.

These cars reportedly steer themselves, turn on the ignition and operate brakes, all

without any human interaction.

These “pilot-less” cars are of course based upon the Toyota Prius platform; the poster

child for “green” automobiles. In Google’s project, they took seven modified Toyota

Priuses and reportedly drove these vehicles 1,000 miles completely unassisted and

another 140,000 miles with only the occasional human intervention.

The  idea behind the project is that “no-driver cars” would be more able to avoid

accidents and could be built much smaller and significantly lighter, which would

require less construction materials.

Google predicts this project could possibly save hundreds of thousands of lives every

year.

When you look at car wreck statistics, I suppose it is difficult to argue with Google’s

methodology.

Having said that, I fail to see the “green” aspect of their other latest project with

Sony, known as Google TV.

Sony’s new line of high-definition television sets will feature built-in Google TV, which

allows users to watch HDTV, access apps and browse the web. These TVs will retail

from $600 for the 24 inch version to $1,400, for the 46 inch one.
CNBC, Napster, NBA, Netflix, Pandora, Twitter and YouTube are all pre installed on the

TV as well, and perhaps this project is more focused on capturing ALL of the TV

market-share time that originally took people away from Google for whatever reason.

Perhaps in a bid to stay relevant and not let Google take all the limelight this week,
Yahoo beefed up its core applications and purchased an Israeli company.
Yahoo has created “intelligent shortcuts,” to offer more interaction both visually and

from a search standpoint, all with the intent of improving the end user experience.

Search items like popular movies, celebrities, the latest articles, photos, videos, event

listings, and Twitter tweets will be delivered in the newly re-designed returned

results. Essentially, the search results returned will be all encompassing and will allow

you to toggle back and forth between photos, videos, and tweets, play sample songs,

view videos, buy tickets, and access your Netflix account.

In addition, iPhone or Android devices will have support. The result will enhance the

end user experience to offer a comprehensive solution instead of simple returned

search results.

The US market will be first to see these new features and Europe and Asia next year.

Bing on the other hand, is going to China first with their new search service; ETAO.

Microsoft and Alibaba, who is China’s biggest e-commerce site, is looking to grab the

Chinese market share after Google’s decision to leave China back in March.

The new search engine site combines Alibaba functionality and a Chinese-language

version of Microsoft’s Bing search engine. Which by default involves Yahoo as Yahoo

owns approximately 40 percent of Alibaba.

Yahoo, in a seemingly unrelated move, has purchased an Israeli start-up company for

approximately $50 million. Dapper Inc out of Israel, has technology to create

interactive display ads and also target the personalized ads market.

Its not hard to see where this newly purchased functionality can lead.

Yahoo will receive the Ramat Gan, Israel, office as Yahoo’s development center in

Israel. This will make the second foothold in Israel with a pre-existing office currently

in Haifa.

Only time will tell to see how Google’s venture outside the search engine realm, and

Yahoo/Bing’s increased investment inside, will play out.

be.

With much fanfare, Google released instant search which in its most basic terms is, in my opinion, a

derivative of predictive texting.

Not to be undone, we have also learned that Microsoft (Bing) has made its own version, most likely in a bid

to “keep up”, and completed this application in record time.

What many of us may not be aware of is that Google has created a blacklist of words that it has essentially

disabled its instant search for, when entered in the search bar.

The end result is that you must hit enter and Google will continue on to the standard results as in the past,

but you can’t find certain things using the instant search function if it is left up to Google.

The biggest question I have is why is Google engaging in what appears to be blatant censorship?

Google discounts this censorship notion and instead views what they are doing as protection for children,

and screening out offensive results from the instant search function.

They are in theory trying to prevent a barrage of offensive words and images flying at you as you type,

thereby ruining the end user experience.

To me this begs the question; Then what is Google’s “safe search” for, and why can’t they apply this same

methodology to instant search?”

Google has not addressed the “safe search” question, but has stated publicly its reasoning behind this

new modification.

To paraphrase, Google has declared that it’s methodology behind the decision concerns its narrow set of

removal policies for pornography, violence, and hate speech. With an approximate one billion searches per

day, Google uses what it characterizes as an algorithmic approach to removing terms, so if the results for a

particular query appear pornographic, by itself or in conjunction with others terms, Google’s algorithms

may remove that query even if the basic query itself wouldn’t necessarily violate Google’s policy.

Essentially, they can’t please everyone.

So the big question is how will this affect SEO going forward?

Well initially you will want to review your keywords. If one of your words is on the blacklist, you can see

that its going to get chosen much less, even though actual impressions may be the same.
This past  methodology should remain constant, but given this new censorship development, even that is

not 100% certain going forward.

If you try instant search to see what is blocked and what is not, you may find some interesting results.

The obvious well known pornographic terms, which we will not cover here are obviously blocked.

The current unacceptable list of curse words and actually, some that are allowable on Television are deemed

unacceptable for the instant search function.

Perhaps most bizarre is some of the blocked terms and even stranger are some unexpected allowable

terms.

For example, you cannot get instant search to work with the following terms:

babes in toyland
asian babe
barely legal
cocaine
hate
Dick Armey
Dick Nixon
latina
teen
twinkie
two girls
white power
hooker

However these words generate results after entering a space after the word:

crack
heroin
escort
sex
tweaker, tweeker
one girl
black power
prostitute

Consider that when you go to binginstant.com, you can get all the results for all of the terms, no censorship

in place whatsoever, and for all intents and purposes, it works the same as Google’s instant search.

This could be taken both as advantage and disadvantage for Bing; I personally lean toward advantage from

a legal standpoint, as they are not taking any sides.

As for Google, I can foresee the lawsuits, probably and mostly civil rights issues in nature, already forming.

Once you take a position, you must defend it.

The blacklist I have generated is just the tip of the iceberg; there are many others that 2600 magazine for

example, has been kind enough to post on its website.

Since you can still get to the Google original results by simply hitting enter, I don’t think many challenges will

stand up to the test to their contentions; all you are really losing is milliseconds in the long run.

What is most strange to me, is that this time Google is doing the restricting and Bing is not.

In this current environment of first to market, newest application, greatest market share and end user

experience, why restrict your searching when uber-timely access to information is the name of the game?

Why take the chance on alienating end users in the name of protection, when you allow unrestricted

keyword bidding? Shouldn’t you help TM owners as well?

Google already has “safe search” so why not use it instead of making the many pay for the behavior of the

few?

I don’t think this is the end of the story but for now, you may want to look at your keywords, lest they end

up on the blacklist too.

Even more amazing is perhaps the short run that Google had with being the only kid on the block with the instant search toy.

It appears that Microsoft has built its own instant search using Bing APIs and some low-key timing settings. This accounts for a slight lag but it is predicting results as soon as you start typing keywords. It then works by analyzing 100 milliseconds between each key stroke, and as soon as you pause, bing references the api to get the suggestions.

I personally tried the application, and for all intents and purposes, it feels like the Google instant search. I didn’t really notice much of a relevance difference nor quicker results; pretty much it is the same application in my experience.

You can try the new application for yourself, currently at www.binginstant.com.

However, progress is rarely without cost, and it appears that in the wake of the Yahoo and Microsoft partnership, Search Advertisers could be the ones paying for all this innovation.

The effect of this new partnership is perhaps a possible rate hike of about of 64% for unbranded keywords and 78% for branded keywords. Keep in mind that while this seems outrageous, you can minus 50% if you had formerly advertised on both Yahoo and Bing; now they are one and the same from an advertiser standpoint, so you are only able to place ads with Microsoft now. The high cost is mostly a result of supply and demand, no matter how you shake it; cut the supply in half, the price must go up.

In fact, even after this pricing rollercoaster all shakes out, Bing’s paid-search advertising could stay up to 23% higher than before the partnership. This is because CPC is expected to increase at the same time as the shift from using both Yahoo and Bing, goes to just using Microsoft alone.

So while advertisers will pay a premium, the end users will collect benefits. Microsoft recently stated that it is going to essentially “pay for you to play” with regard to Bing.

They are rolling out a points / reward program that will encourage you to stay on Bing, try out its applications, and use its searching.

To start, you can receive 250 credits just for signing up and then you get more credits by jumping through a few Microsoft hoops or even just doing some Bing searches; all on their terms.

How will this work and what terms are required to get to the good stuff?

Well, if you set your browser search to default to Bing, or if you try some of the new Bing features, then for every five of these new Bing searches you get a credit which tops out at eight credits per day.

But you cant just start earning points, there are a few rules and step that need to be followed.

First, to get started, you must install the new “Bing Bar” on your computer. This is how they are going to keep track of the new points system.

Keep in mind however, this can only be accomplished by both having and running your Windows Live ID.

If you do not have this, it is fairly easy to get and its free. Given that this is all Microsoft’s idea, it makes sense and is really not too much to ask.

So after you secure your Window’s live ID, you may not necessarily be done.

One obvious requirement is that you must be using a Windows-based computer; Google’s Chrome, Firefox, or Apple’s Safari wont get you through the door this time.

They may have started as open source, but there is one truism when they give things away at Microsoft;
nothing is ever free.

China Mobile is furiously racing to market an online search engine, due out early next year to compete with Baidu, the Chinese equivalent of Google, in Asia.

Recently Twitter also rolled out new fnctionality and changes somewhat out of the blue.

China Mobile’s specialty is, obviously by its name, cell phones and communications.  However, in a bid to stay viable, China Mobile is trying to enter the search engine market with a newly designed engine full of communications related features and functionality.

It has been speculated that users will be able to access the new China Mobile search engine via PC, laptop or mobile handsets, but in a surprising twist for Asia,  the law prevents China Mobile from excluding or blocking Baidu from accessing its mobile network as well.

The calculated risk here will be if this search engine will be a competitor or instead, actually increase Baidu’s already massive market share, by providing new features that Baidu users can search for, and access.

Recently, the Baidu search engine has caught the attention of the popular social media site, Twitter. It has been rumored that the new Twitter modifications are actually “Baidu-inspired”; this means that elements of the “west” are playing closer attention to this “eastern” search engine, than we may have imagined.

Specifically, and speculatively, the attention is on Baidu’s new service they call “Box Computing Open Platform” which was rolled out this month. This was rolled out with much fanfare much like the way Google did with “instant search”.

Basically, the new Baidu changes are about access to an online search-able applications library, similar to an iphone “ap” store in accessibility and provision but still very different in usage and design.
This new searchable library will contain third-party apps like, the Apple itunes “Ap” store. You can search for and download items like games, e-Books and assorted other software.

How this works is, the new functionality simultaneously launches on the Baidu site as visitors are using the search engine; the overall idea is to steer visitors away from other Web sites and instead provide Baidu with a speculated 30 percent commission in many different partnership advertisement deals.

The Public Relations idea is that the user experience will improve, much like the way Google’s instant searching is supposed to assist in getting to results quicker. However, when it all comes down to it, money from ads is at the root of the changes.

Its no wonder that China Mobile and Twitter are paying attention to what’s going on at baidu.

Currently, the new Twitter modifications will allow users to navigate between posts and links without having to leave Twitter, as in the past.

Twitter third party clients such as TweetDeck and Seesmic were beating up the social media site with innovation that left many wondering “Why didn’t Twitter think of this?”.

Now, with Twitter taking a two-column layout design, with your regular functionality remaining on the left side and the new tools and functionality resides on the right side, Twitter is appearing to move into a more functional social media outlet rather than a 140 character anomaly.

Consider that for example your Flickr and TwitPic pictures and your YouTube videos, along with your ongoing conversation threads will be accessible on the new right side and still open, while you are using Twitter as you normally would on the left side, and at the same time as well.

One thing is for sure, Baidu must be doing something right and if there was any doubt that this could come west, the idea that Twitter may have taken its cues from Baidu should at least make you consider the possibility.

This is an interesting new modification that essentially “thinks before you do” and acts somewhat like “predictive typing” on your cell phone. As you begin typing a word, the results basically change “on the fly” and settle when you stop typing for a couple of seconds.

This new feature is essentially being done with the intention of getting you to the results you were originally searching for, just faster.

Some online specs to consider: the average user search takes approximately 25 seconds, however when using Google Instant, the average search time takes on the average 2 to 5 seconds less.

This reduction in search time is accomplished in the following way; it takes nine seconds to type a query, then it requires 400 milliseconds in network wait to communicate that search to Google’s servers.
At this point, there is a wait time of 300 milliseconds while Google actually processes your request, and then another 400 millisecond wait for Google’s return to you.
Finally, it is assumed that the average user takes approximately 15 seconds to view the results and select the one that actually matches the original intent of the search.

This is not a guaranteed or hard figure, as slower broadband connections could possibly reduce the time savings to zero.

We all had to know that post -acquisition of Like.com, which is a visual search engine, some of the newly acquired functionality would be adopted or co-opted by Google for use in  searches beyond the fashion world; Google goggles, I am sure, benefited the most.

Like.com had previously bragged on their ability to create algorithms that understand whether items of clothing or fashion accessories complement or clash with each other.

Given this understanding, its not hard to see where the instant searching gets some of its functionality from.

Some industries will not benefit from this new functionality; as Google Instant has omitted suggestions for words that it considers pornographic. There is no confirmation on where the lines between “pornographic” and “not pornographic” are drawn exactly.

This will most likely be a point of contention going forward, given the amount of money that pornography generates.

Previous search results for this industry are likely to be much reduced as Google will now populate results on the fly for non-pornographic results, but will not do likewise for pornography where formerly, pornography may have ranked much higher.

Another “loser” to the new functionality is the “Bing” search engine, as Microsoft engineered “instant searching” a year ago, but failed to act on it.

 At the time, Microsoft was unconvinced of the merits of such a service, and now they have to watch as Google, one year later, is actually rolling it out.
Yahoo has also toyed with a variant of “instant searching” in the past, but it never caught on, and is for the most part, abandoned.

Advertisers do not seem initially to be included in the “losing” category, as Google will not change the way ads are served. Ads will also be shown with the “predicted search” and will populate and change with each keystroke as will the other data, save pornography.

The only change that we may see along these lines will be with regard to “impressions” and how they are counted. Since impressions will be counted if you click on something as normal or if you stop typing for three or more seconds, the net result will be that your impression levels may change, either up or down.

In the end, the goal will be to improve the overall quality and accuracy of searches, so the many other factors at work where traffic is concerned, may offset any adjustment made by the “predicted search” adjustment.

This is also true of the domain industry, but obviously the scale is different.

This week, ETF.com, CO2.com, AbdominalTrainer.com, Collision.com, Spoons.com, Complain.com, Haircare.com, Heroine.com, Maid.com, HDProjector.com, Poster.com, WirelessHeadphone.com, SEM.com and WiFi.com go on the auction block, as well as the biggest domain name registrar on the internet, Godaddy.com.

Godaddy.com has over 42 million active domain names under their portfolio,  and when you consider that when Register.com sold earlier this year for $135 million to Web.com, its no surprise the estimated sale of Godaddy.com is predicted to top $1 billion. Godaddy.com’s revenue for 2009 was around $800 million, so at least from an investment standpoint, the sale seems likely.

Along with Godaddy.com, WiFi.com is looking for a new owner.

While not a registrar, wifi.com has become a household word in the last few years; WiFi is the synonym for IEEE 802.11 WLAN technology.

 This is the technology that enables wireless Internet connectivity between access points and your Wifi-enabled devices such as laptops, cell phones, gaming consoles like Xbox 360 and Playstation3, and portable devices like the Apple itouch, even some digital cameras .

It has been speculated that approximately 823,000 searches for the keyword ‘WiFi’ happen monthly.

Also on the block is SEM.com which is going to auction on October 19th. SEM is the acronym for search engine marketing, and to many of us, represents part of our daily routine. SEM is also the practice of promoting websites by increasing their traction and positioning on search engines, and increasing traffic for these sites via search engine optimization, and other internet marketing techniques.

When you consider that SEM spending is slated to increase to $26.1 billion by 2013 and by 2014 online marketing is projected to represent $55 billion or 21% of all marketing that businesses spend, its no surprise that SEM.com, seems to be a front runner for high dollar auction prices.

Some of the other names up for auction while tantalizing, are probably not going to garner the type of revenue that registrar’s like Godaddy and Register.com will get.

Some of the other domains up for auction are fairly significant when you consider that domains like ETF.com is “short” for exchange traded funds, and is currently being used in this capacity. It is also a three letter preferable domain and should by all indications be one of the higher priced ones.
CO2.com is indeed a website which sells carbon dioxide products and falls into the green realm somewhat.
AbdominalTrainer.com obviously sells ab machines and products and to the infomercial world, this domain may be “worth its weight in gold”.
Collision.com is for the most part a pay per click style site which is probably going to fare on the lower end of the auction sales.
Spoons.com crawls the internet for spoon items at auction and other locations, and will most likely be one of the lower sales too.
Complain.com is a customer complaint site and sites like this are one of problems we are perpetually trying to overcome for reputation management reasons. 
Haircare.com is more of a salon forum than anything, but to the right buyer, it could be just what they needed, just like Poster.com who sells all kinds of posters. 
Heroine.com is a “heroin” recovery site, but probably will be on the lower end of the sale.
Maid.com is a traffic driving site about maid related subjects, and is definitely a niche that could go either way.
HDProjector.com and WirelessHeadphone.com crawls the internet for their items at auction and other locations, with the impending holiday season this could tip the scales in their favor.

Domains are going to change hands soon and it will interesting to see how much cash is involved, and depending on how the landscape changes, I wonder if Bob Parson’s gets to keep doing his blog?

According to Dustin Curtis, a designer who was quoted recently in the New York Times, there are three things that reliably drive traffic at Twitter: “(a) bashing airlines, (b) bashing Comic Sans, and (c) Justin Bieber,” .

Comedy aside, consider that Justin Bieber makes up 3% of Twitter traffic which translates to roughly 5 million followers on Twitter. This has been equated to “racks of servers, with Justin Bieber’s name on them.”

Twitter also seems to have found its following and is currently in no danger of going away either.

When you factor that there are over 200,000,000 blogs, and 54% of bloggers post content or tweet daily, 34% of bloggers post opinions about products about products or brands, its not surprising that social Media is now the number one activity on the web.

The Twitter social media outlet seems to be the outlet that stars use most to communicate with fans.

When professional wrestler Hulk Hogan was hospitalized recently, he updated his fans via Twitter. He made a video from his hospital bed and told his fans that he was “feeling better already.”

When Paris Hilton went to Hawaii to get away following her recent arrest,  she complained on Twitter about the presence of paparazzi on the island.
She writes “The paparazzi have been out of control in Maui, We had to call the cops because they have been trespassing on our property all week trying to get shots. As well as chasing our car wherever we go and almost running other cars off the road. Its not only invasive and annoying, but dangerous as well.”

“I flew to Hawaii to relax and get some privacy and they won’t stop,” she continued. “I am so sick of them and all these ridiculous rumors people are inventing, it’s disgusting and very hurtful.”

Perhaps in a more beneficial use of the social media outlet Twitter, a Japanese journalist who was released this week after being held captive in Afghanistan for five months explained on Tuesday how he had managed to post two updates on Twitter from the phone of one of his captors.

Three days before his release, one of his captors,  identified as a low-ranking soldier, was showing him a new cell phone. The soldier didn’t know how to use it and asked if Tsuneoka would take a look and explain it to him. The soldier was unfamiliar with the Internet, but was eager to see it. 

Initially the phone wasn’t signed up to receive the carrier’s GPRS data service for accessing the Internet, so Tsuneoka called the customer care number and activated the phone. Soon after the soldier’s phone was configured for Internet access and more specifically, Twitter.

Tsuneoka sent the two following tweets: “i am still allive, but in jail” and “here is archi in kunduz. in the jail of commander lativ.”

The strangest part is that Tsuneoka has been abducted before; He was abducted in Georgia in 2001 and held for several months and then freed during a Georgian military operation.

No Tweeting during that period.

Twitter seems to have dug in and despite early signs that it had no second act, it seems they have figured out their place in this world.

people, raised $30 million in its first round of venture capital financing this week.

Inflection.com owns Archives.com, and PeopleSmart.com, which aggregate public records and data from

past and present, and turns those results into useable, and possibly actionable, data.

PeopleSmart.com, the actual engine, combines contact information, public records, and social profiles and

pools that data from hundreds of sources into a search-able, search engine style platform.

This week, venture capital entities got in on the fun as Matrix Partners and Sutter Hill Ventures participated

in the 30 million dollar funding episode.

Matrix Partners have offices in California, Massachusetts, New York, India and China and has previously

invested in firms suchs as; Apple, Sandisk, Veritas, Sycamore Networks, Phone.com, Starent Networks,

JBoss and Gilt Groupe.

Sutter Hill Ventures was founded in 1964, and has invested in; Network Appliance, Legato, Data Domain,

Alteon, Linear Technology, nVidia, BroadVision, Shutterfly and QuinStreet to name a few.

The new Inflection search engine’s stated mission is to transform the public records industry and convince

you of it with a free 7 day trial and then $39.95 per year after that.

Inflection was founded four years ago by brothers Brian and Andrew Monahan. Brian, supposedly started

the search idea in his Harvard dorm room and his brother helped bootstrap it, to get it going.

The business seems to have been a very profitable venture, as “personal data searching” has gained

momentum over  the past 4 years; This is most likely due to the increase in popularity with social media

outlets as well.

So how does this search engine work?

The historical records are made available through Inflection’s website; Archives.com and current records

are accessed through PeopleSmart.com.

They claim that this will all be privacy friendly.

PeopleSmart currently hosts 250 million+ social profiles, and 500 million public records, and an unspecified

amount of contact information for a percentage of U.S. households.
 
Some of the PeopleSmart features listed are: An email plug-in which they portray as “caller ID for your

inbox,” which will allow you to view a sender’s social profiles and photos with every email. Then,

PeopleSmart subscribers can use anonymous emails to make their email listings private, then it will relay

messages on behalf of its users; much like a secretary.

Theoretically, you will have “Control of Records” which PeopleSmart claims will allow users to manage their

listings online, submit corrections, and remove any information they don’t want people to see.
In addition, PeopleSmart claims it can search the actual court archives to retrieve and return court records.

They feel this is a good move based upon the idea that “people searching” currently appears to have large

verticals in the online search market.

Based upon some recent stats, 57% of adult Internet users use search engines to find information about

themselves online, another 46% of users search online to find info about other people from their past.

This is up from 36% from this type of searching in 2006. Traditionally this information has been highly

fragmented, and given the nature of the type of data, it is understandable why.

To me this begs the question, “Is this a good idea?”.

This information is for the most part, public knowledge and accessible already, they are simply making it

easier to access from a central location and dumbing it down so anyone can access it.
 
While I support free access of information and vehemently oppose censorship, except when it comes to

children, I have to question the motives at work, both by the provider and the user.

The search engine is not free like Google, it is only free for 7 days, then it is $39.95 per year.

To some in this economy, that might as well be $400 per year; that will remove the financially impacted

person’s ability to benefit from this searching, so apparently not every one will be able to use it.

Also, the “anonymous” ability by peoplesmart users, seems to leave open the ability for the bad guys to

hide even better for $39.99 per year, and remove crucial information from online sources that previously

they had no idea how to get rid of.

How will this interact with the “other” search engines like Google, Bing, Yahoo? How will the results be

handled? Depending on how its implemented, I can see “back dooring” and “black hat”possibilities already

forming.

Possibly this could even start an “innovation war” like what happened with Google, Bing, and Yahoo.

I speculate that Intellius.com or similar currently existing person search tools are not going to just let

themselves get put out of business; they will have to address this new player head-on to stay relevant.

The only problem is that instead of playing with cool tools and pictures, we are now playing with people’s

personal information and privacy.

We will see how this develops over the coming months, but I remain apprehensive, to say the least.

using its logo in a television ad that began running this week.  The media will often use corporate logos

and/or trademarks in stories under the assumption that they are protected by “fair use”.

The Minnesota State Fair logo is trademarked and the Minnesota State Fair does not see it as fair use.
Michele Bachmann’s Congress campaign did not ask for permission to use the Minnesota State Fair logo.

The issue is that the State Fair can not endorse any candidate running for political office, so the inference

could be hazardous.

Consider that one of the rights accorded to the owner of a copyright is the right to reproduce or to

authorize others to reproduce the work in copies.

The fair did not give this permission.

This right by the holder is subject to certain limitations found in sections 107 through 118 of the copyright

law (title 17, U. S. Code).  Through much litigation, these sections have come to define “fair use” as it

applies to the law, and this situation.

The first amendment is commonly used to defend non-rights holders use of a given mark, but it will not hold

up in this situation; ‘Fair use’ does not allow the use of someone else’s trademark in a way that

misconstrues the trademark owner’s sponsorship or endorsements.

The State Fair has made it clear that the Fair does not endorse Ms. Bachmann’s or any other political party.

The appearance of the Fair’s logo’s in the advertisement could be seen as an endorsement.

More importantly the political ad criticizes the opponent Tarryl Clark for votes on taxes and flashes the fair

logo at a strategic point.

So what would be fair use?

Under current definitions, to legally use the Fair’s trademark, Ms. Bachmann’s campaign would have had to

establish what the purpose and characterization of the usage is, including whether the use is “commercial”

or nonprofit or educational purposes.
Ms. Bachmann’s campaign would have to prove the nature of the copyrighted work is not at risk.
They would have to quantify the amount and substantiality of the portion they used in relation to the

copyrighted work as a whole, and demonstrate that it is not blatant infringement.
Furthermore, the effect that the usage would have upon the potential market for, or value of, the

copyrighted work, and if this market is impacted.
Last they would have to draw distinctions between fair use and infringement and make sure it is easily

defined; there is no provision to allow a specific number of words, lines, or notes that can be used without

permission.

The biggest mistake that most people make is that simply acknowledging the source of the copyrighted

material is not a substitute for obtaining permission.
Many web sites put a simple disclaimer at the bottom of a page and assume they have done their due

diligence to establish fair use; that would be a mistake.

Ms. Bachmann’s campaign still believes it has a right to use the mark in the capacity they were using it, but

out of respect for the event, they have removed the logo.

In a recent court case however, the burden of proof against fair use may fall on the mark holder and not the

infringer.

Amazingly. to address which party has the burden of establishing nominative fair use, the U.S. Court of

Appeals for  the Ninth Circuit reversed the district court and determined that the party charging trademark

infringement has the burden to prove a likelihood of confusion. Specifically in the case, Toyota Motor Sales,

U.S.A., Inc. v. Tabari., Case No. 07-55344 (9th. Cir., July 8, 2010) (Kozinski, C.J.)(Fernandez, J. concurring).   

Toyota sued two independent auto brokers over trademark infringement for the unauthorized use of the

Lexus mark. The two auto brokers specialize in selling Lexus vehicles. They websites in question are: buy-a-

lexus.com and buyorleaselexus.com.

Initially the court found for Toyota, but on appeal, the court determined that the defendants had presented

a compelling fair use defense to the district court.

Toyota argument centered around the use of the word “lexus” in their domain name. They stated that this

was unnecessary, since the website could have used a different name; especially one that does not use the

Lexus mark. Furthermore, it could be suggested that the website appears to be endorsed by the trademark

holder. The Ninth Circuit rejected these arguments. The court held that it is nearly impossible to let

customers know that they are brokers of Lexus cars without mentioning the word Lexus.

Also rejected was the argument that the defendant’s websites appeared to be endorsed by Lexus.

The court determined that a reasonable customer going to the websites would not be misdirected that the

website is sponsored by Toyota.
The outcome is that they defined that the Lanham Act always places the burden of proving likelihood of

confusion on the party charging infringement.

Any defendant seeking to assert nominative fair use as a defense need only show that it used the mark to

refer to the trademarked item.
The burden then returns to the holder to demonstrate a likelihood of confusion.

In light of this, it almost seems as though Ms. Bachmann’s campaign has a shot at fair use. 

They were merely referencing the fair, and under this new definition perhaps they were using it properly?

However, we will never know since they voluntarily removed the logo and the issue has now dropped.

One thing is for sure, the case for due diligence is made on these two issues.

Directors.
They hope to fill this position with those who may be interested in helping to develop policy, and are able to

serve on ICANN’s Board of Directors.

If you are reading this, you may qualify. Here are the requirements: you must be an Internet user who does

not represent a particular government, corporate or non-profit entity.

You will be the voice for the average everyday Internet user and try to represent the view of individuals who

often simply feel they don’t have a voice in policy formation.

You should have a broad international perspective and a background in Internet users’ interests, consumer

policy and/or civil society worldwide.

If you are interested, you can obtain more information by writing ICANN’s Board Candidate Evaluation

Committee at BCEC-Request@icann.org. The deadline to apply for the “At-Large Board seat” is September 6,

2010.

Just think, soon after taking your new position at ICANN, you may have to help out the US Government.

The White House has asked ICANN (and other entities) for a meeting to discuss illegal online pharmacies.

ICANN and other companies were asked to send a representative to a meeting on this issue on September

29.

The ICANN new board member deadline is September 6, so barring a long interview and hiring time frame,

you should have a good week to 10 days to “get your feet wet” at ICANN then jam over to the White House

and cure their ills next.

I almost think I see a “Nobel” prize of some sort on the horizon for you next!

Registrars are catching heat for failing to control the activity on domain names registered with them, and

eNom in particular has been singled out.

ENom, who is essentially the world’s second-largest domain name registrar, has been accused recently of

playing host to an inordinate amount of what could be described as “malicious” websites.
Possibly coincidentally, ENom seems to be the preferred domain name registrar for pharmaceutical

spammers as well.

ICANN is currently looking into the issue and awaiting eNom’s response with regard to questions about
some eNom resellers who seem to be violating ICANN rules. They are accused of allowing customers to

provide false Whois database information, not following ICANN deletion policy and not in compliance with

reseller obligations.

ICANN’s main concerns are centered around the idea that scammers are abusing the domain name

registration system to hide domain name servers to make it difficult to put illegal networks of hacked, botnet

computers out of operation.

This is a great issue to show ICANN how you can help, and get in good with the White House.

So get your applications submitted and think about how you can help ICANN, the White House and maybe

even eNom get through this rough time.