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Google AdWords: Aiming at the Misdirection Game

02/27/2017 11:43:00 am | Viewed: 789

Texas Construction News from Virtual Builders Exchange

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Through the use of Google AdWords "Builder Exchange," a search for "Minnesota Builders Exchange" on a mobile device results in CMD Group in the top result position. This prompted the MBEX to raise a complaint.

 

Posted: 2-27-2017, 1:05 p.m.

by Adolfo Pesquera

Google AdWords, an important revenue source for the Internet giant, can lead to confusion and even misdirection for general contractors and subcontractors.

Over the past few years, the construction data company CMD Group has paid Google for the words “Builder Exchange,” in order to place its website above that of any builder’s exchange organization in the country.

Builder’s exchanges are generally non-profit regional state or county organizations that provide online construction project data for members that need a one-stop shop for estimating purposes. Builder’s exchanges have faced fierce competition from national for-profit companies like CMD Group and Dodge Data & Analytics.

CMD Group, however, is not a builder’s exchange. Builder’s exchanges such as the Minnesota Builder’s Exchange have been referred to by their members as a “builder’s exchange” for a century or more. The term came into use during the construction boom that occurred in the latter decades of the Industrial Revolution (1880 to 1930). Master builders set up centralized construction document libraries for contractors competing for projects.

These relations were formalized through the creation of professional associations. The rise of the Internet has presented these associations with new challenges, not the least of which is new competition from firms that test the boundaries of fair marketing practices.

Jill Gerwig of the MBEXIn the spring of 2016, a Google sales representative called on Jill Gerwig, the editor and marketing director for the Minnesota Builder’s Exchange (MBEX). He discussed getting the exchange to purchase AdWords, which are keywords that are likely to be used by a consumer looking for a specific product or service.

Gerwig opted not to make a purchase, telling the Virtual Builders Exchange that the price was steep for a small non-profit on a tight budget. However, she got an education in how AdWords work and noticed the prominence CMD Group held.

“Anytime you enter the name of a builder’s exchange, CMD comes up first. It can be Minnesota, it can be Virtual, it can be the Builders Exchange of Rochester in New York, it doesn’t matter. It doesn’t even have to be a real exchange. You could search for the Monkey Builder’s Exchange and still get the same result,” Gerwig said.

The MBEX decided to act and had their attorney send CMD a cease and desist letter in April 2016. Gerwig said CMD appeared to ignore the letter and on Feb. 10 a second cease and desist letter was issued.

Counsel for MBEX, J. Matthew Berner of the Droel law firm in Bloomington, Minnesota stated in the second letter that MBEX owns trademark and common law rights to the name “Minnesota Builder’s Exchange.” MBEX demanded that CMD removed the offending AdWords from its marketing and confirm their response in writing by Feb. 17.

Matt Berner of Droel Law

During the time lapse between the first letter and the second, CMD Group was acquired by Roper Technologies Inc. of Sarasota, Florida. CMD Group was acquired in October as part of a larger acquisition that included iSqft and Construction Market Data.  The new conglomerate is now marketing under the name ConstructConnect.

It was, therefore, an attorney representing Roper Technologies that responded on Feb. 21, Gerwig said.

Roper Technologies parsed Berner’s words, noting that CMD Group did not use Minnesota as an AdWord, only the more generic term Builder Exchange. According to Gerwig, the Roper Technologies’ attorney asked for more evidence to substantiate MBEX’s complaint.

Until recently, an Internet search using the words “Builder Exchange” would result in a CMD link on any device. Since at least early February 2017, however, the CMD link no longer appears when the searcher uses a desktop computer.
“All mobile devices are still affected,” Gerwig said.

Given the fact that professionals in the construction industry are often in the field and rely heavily on mobile devices such as iPads, this raises a concern as to whether CMD has an unfair advantage.
MBEX has brought the issue to the attention of other builder’s exchanges around the country and Gerwig said many were concerned.

Ted Lee of Gunn Lee & Cave

It is questionable, however, whether the builder’s exchanges have a clear-cut case for damages should they ever decide to sue. Ted Lee, a registered patent attorney at Gunn, Lee & Cave in San Antonio, told VBX a complaint against CMD Group could go either way.

During a six-year period following the 1999-2001 Internet’s dot-com collapse, there were a line of cases that favored plaintiffs complaining of word search devices that attempted to divert consumers toward one product when the consumer intent was to find their competitor.

“After a period of time, that line of cases began to be eroded,” Lee said. “The courts came out and said, ‘It depends. Did they do anything further to confuse the public into believing there is some affiliation between the two?’”

The legal basis for a claim is the Lanham Act, a federal trademark statute that states in part that any person using “any word, term, name, symbol, or device, or any combination thereof” that is “likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association” with another shall be liable in a civil action by any person who believes they are likely to be damaged.

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“We know in the present case that CMD has no connection with builder’s exchanges. It is not a builder’s exchange. Builder’s exchanges are normally non-profit organizations that make data available to members,” Lee said.
Nevertheless, with regards to the provision of architectural and engineering construction documents, CMD provides a service that can easily be confused with those provided by a builder’s exchanges.

“It appears to be in kind of a gray area. But there’s no question that CMD is using this so that if anybody is looking for a builder’s exchange, they will see their activity,” Lee said. “CMD purchased the words for the ads because they were wanting to get people using the words to go to their website.”

There are four categories of terms or keywords the law considers: generic, descriptive, suggestive marks and coined.
Generic terms normally cannot be protected in order to favor the person bringing the complaint, Lee said. Descriptive terms, which is the category that “builder exchange” might arguable fall into, could possibly carry more weight, depending on circumstances.

A suggestive mark is something like the word weedeater, which has become a common term that originated with a trademarked product, the Weed Eater created by George Ballas. An example of a coined term is EXXON, an internationally recognized invented word for ExxonMobil Corporation.

While CMD’s practice is “merely descriptive,” Lee said a case could still be made if a court could be convinced there is unfair competition because someone was confused into believing there is an affiliation with builder’s exchanges.
There is an old saying: “What’s sauce for the goose is sauce for the gander.” Builder’s exchanges may rightly be irritated with CMD’s attempt at linking itself to them. But CMD could make the argument that its main national competitor has pushed the boundaries even further.

Entering the company name “CMD Group” in a Google search produces a result that puts “Dodge Construction Leads – Construction.com” at the top. As of February 2017, this occurs on desktop computers and mobile devices.
There’s another old saying: “What goes around comes around.”

 

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adolfo@virtualbx.com


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Jill Gerwig of the Minnesota Builder's Exchange
Patent attorney Ted Lee of Gunn, Lee & Cave
Matt Berner of Droel Law

Author Info
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Adolfo Pesquera
Reporter/Editor
adolfo@virtualbx.com

Adolfo Pesquera is a veteran news journalist. He has worked for Hearst Corp., American Lawyer Media, News Corp and Freedom Communications. His work has been published in newspapers and magazines across the USA. He is a journalism graduate of UT-RGV. He writes, edits and creates digital pages for VBX.