Google is now permitting EU advertisers to use the trademarks of competitors as keywords in its AdWords service, however, if you are using a competitor’s trademarks in your advertisement you could still be liable for trademark infringement.
What is Google AdWords?
Google AdWords displays paid for advertisements to the right of the Google search engine results when a specific term is searched for in Google. Many advertisers use competitors’ brand names as keywords in their AdWords advertisements so that when their competitors name is entered as a search term in Google, their own advertisement appears.
Trademark Infringement by Google
There have been a number of European court cases where brand owners, such as LVMH have claimed that Google is breaching trademark law by allowing competitors to use its trademarks as keywords in Google AdWords. It was established in the LVMH case that Google was not infringing the brand owner’s trademarks, but that the advertiser may be liable for trademark infringement.
Trademark Infringement by the Advertiser
In a recent Dutch case the European Court of Justice ruled on the issue of whether or not an advertiser using a competitor’s trademarks as keywords in an AdWords advertisement is liable for trademark infringement. The court ruled that there is a trademark infringement by the advertiser (not Google), if the advertisement creates confusion about which company is behind the advertisement.
New Google Trademark Policy
As a result of the above decisions, Google will from the 14th of September allow companies advertising on Google AdWords in Europe to use trademarked terms as keywords in their AdWords advertisements. However, according to Google’s amended trademark policy competitors will still be able to complain about the use of their trademark by an advertiser if they feel that it leads to a specific advertisement which confuses users about the origin of the advertised goods and services.
Google will conduct a limited investigation and if it finds that the advertisement does confuse users as to the origin of the advertised goods and services, it will remove the advertisement.
Although Google itself will not be infringing trademark law by permitting advertisers to use third party’s trademarks as keywords, the advertiser themselves could still be liable for a trademark infringement. The UK courts will be left to decide whether or not a trademark infringement has taken place in each individual case.
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