GOOGLE ADWORDS TRADEMARK VIOLATION
Google AdWords is a popular form of adverting in which you pay Google to make your ad appear when certain keywords are searched at Google.com.
Problems arise when the keyword at issue is a trademark or when the ad copy contains a trademark. Specifically, disputes arise when competitors pay to make their own ads appear when a competitor’s trademark is searched at Google. This particular practice—among others—has led to allegations of trademark infringement. If someone else’s Google AdWords campaign is using your trademark, serious harm to your business can result.
Naturally, this situation can cause harm in the following ways, among others:
- Consumers that were seeking you go to your competitor instead
- Confusion among customers regarding your trademark and products or services
- Loss of goodwill in your trademark
Purchasing Keywords on Google AdWords that are Trademarks
Google’s stated policy is that it won’t investigate or restrict the selection of trademarks as keywords. So, for example, anybody can pay Google to make their own ads appear when someone searches trademarks such as Microsoft, Apple and Amazon.
Google’s policy is supported by existing case law which has held that this activity alone is not a trademark infringement because it does not constitute use of the trademark. For trademark infringement to occur, the Lanham Act requires unauthorized use of the trademark in commerce. This typically involves using the trademark in relation to the sale of goods or services. Since the advertiser is not causing the trademark to appear, courts have held the mere act of bidding on keywords is not trademark use.
Ad Text that Contains Trademarks
Where Google will draw the line is for ads in which a trademark appears in the text of the ad. If the use of the trademark is unauthorized and is leading to confusion among consumers, Google will restrict the use. This again is supported by the case law which has held that use of another party’s trademark in the text of a Google AdWords ad amounts to trademark infringement.
So, for example, Google will allow Walmart to place ads anytime someone searches for “Target”. However, if those same ads read: “Why buy at Target when Walmart has better prices?” that would violate Google AdWords policy (and would also likely get Walmart sued for trademark infringement).
Regardless of Google’s policies, buying a competitor’s trademark as a keyword could still lead to confusion among consumers and thus could expose you to a trademark infringement claim. Also, special situations exist if the trademark at issue contains a design element or if the trademark at issue is registered to the Supplemental Register rather than the Principal Register.
Since each Google AdWords trademark case may involve unique facts, we recommend that you consult with a trademark attorney experienced in this area.
Contact Mandour & Associates, APC
If you have an issue related to Google Adwords such as someone bidding on your trademark or using your trademark in a matter that is causing confusion, please feel free to contact us for assistance.