In June ‘09 there will be changes to the Google AdWords Trademark policy. To help understand the importance of this change, it’s useful to take a look at the history of how Google treated the trademarked term within AdWords. In April of 2004, Google changed its trademark policies, allowing U.S. and Canadian advertisers to use others’ trademarks as keywords. Google reported that it had evaluated case law surrounding the issues and was acting to provide users with more choice. They believed the key issue in the U.S. was whether or not a consumer would be confused by the use of the trademark. Since consumers never see what exact keywords an advertiser bought, and only know that the served ad is deemed to be somehow related to their own search, the company maintains there shouldn’t be any confusion.
One month after this policy change Google was sued by the insurance provider GEICO. Google had allowed rival insurance companies to bid on the term GEICO in order to target pay per click ads. In 2005, this case was settled out of court, leaving unresolved the question of whether it is legal for advertisers to use trademarked terms within their ad copy, or to bid on keywords that are trademarked by competitors.
In 2007, American Airlines made the same argument, which by this time had been presented by a number of other companies that had sued the search giant during the previous five years, claiming that Google had no right to sell company trademarks for use as keyword triggers that elicit paid advertisements. In July 2008, American Airlines and Google settled the lawsuit, and again, the terms of the dismissal were not disclosed in court records.
Some companies have been suing each other for buying Google keywords to avoid having to deal with Google directly. In August 2007, 1-800 Contacts Inc. sued rival contact-lens retailer Lens.com Inc. in federal court in Salt Lake City, and 1-800 Contacts sued Drugstore.com Inc. in February 2008.
In 2006, on the international front, a French court of appeals affirmed a lower court ruling that Google had infringed on Louis Vuitton’s trademark by selling search-related keyword advertising to competitors of the fashion company. Google’s trademark policy outside the U.S., Canada, the U.K. and Ireland states that when Google receives a complaint from a trademark owner, their review is limited to ensuring that the advertisements in question are not using a term corresponding to the trademarked term in the ad text or as a keyword.
To date there hasn’t been a lot of change in the law around the subject because these cases are mostly being settled out of court, but there will be changes to the trademark policy in June that will probably rile the feathers of trademark holders. For more information about how the policy will change, read my post about the new Google Trademark Policy.
Last 5 posts by LukeMenasco
- Facebook Vanity URLs - Are You Ready? - June 10th, 2009
- Google Trademark Policy - June 4th, 2009
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