Top 5 List– Why Utah’s 2007 Trademark Protection Act Amendment Failed

5. Poorly drafted legislation
4. Misinformation by opponents
3. Failure to engage local experts
2. Opponents’ effective use of social media
1. Proponents’ failure to properly engage social media

In 2007, the Utah State Legislature passed a law intended to limit the sale of trademarks as search terms by internet search engines. Companies like Google and eBay were pretty unhappy. The law, however, was effectively repealed the very next legislative session after it received substantial national press, much of which was negative.

So, why did the 2007 amendments to Utah’s Trademark Protection Act fail? Contrary to what many social media outlets would lead one to believe, it was not because of the legal problems with the bill. True, the legislation had its share of legal issues, but nothing that was insurmountable.

I believe the above Top 5 List best sets forth the reasons why Utah’s Amended 2007 Trademark Protection Act failed.

5. The legislation was poorly drafted and demonstrated a lack of understanding of trademark law and real life SEO issues. This is unfortunate since Utah has numerous legal experts experienced in trademark and cyber law. Had the proponents of the legislation consulted the Cyberlaw Section of the Utah State Bar, they probably would have received quality feedback and consequently ended up with stronger legislation more able to withstand criticism.

4. Opponents of the legislation effectively disseminated misinformation, greatly exaggerating legal effects, potential constitutional issues, and fears concerning legal battles and national embarrassment. This in combination with #2 of this Top 5 List invoked insecurity among legislators who were not literate in cyber or intellectual property issues. The natural reaction was to remove their fears by removing the legislation.

3. There are two categories of experts abundant in Utah that the proponents of this legislation should have heavily involved. The first category, as mentioned above, includes competent intellectual property and cyberlaw attorneys. The language of the legislation would have more easily withstood scrutiny had it received more input from these experts.
The second category includes the large populace of technophiles and social media experts. Social media experts would have prepared the proponents for the needed legislative marketing. Social media experts understand the culture and strategy of online marketing battles, which is where this fight was won and lost. Google, eBay, and other opponents of the legislation had a natural advantage because of a volunteer army of advocates existing by virtue of a shared culture.

2. Opponents of the legislation effectively disseminated their message in cyberspace using social media, thus giving the impression that their view was the majority view and that proponents of the legislation were out in left field.

1. Proponents of the legislation were thoroughly unprepared to handle the modern media war thrust upon them. They simply did not “get it”. Their message was not disseminated or articulated well. The opponents’ effective social media campaigns marginalized the proponents’ message.

Presently, the Utah State Legislature is considering HB 450, which is another attempt at limiting the abusive use of competitors’ trademarks as search terms. Opponents of the bill are dumping lots of money into their lobbyists’ pockets over this issue. We should shortly see whether any lessons were learned by the past failures. It will be interesting to see whether any of the Top 5 failures of the 2007 Trademark Protection Act Amendment have any impact on the success or failure of the currently proposed legislation.

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