Keyword advertising is recognised parlance in the e-commerce world. But, hang on, what is it? It is an online advertising service that places advertising copy at the top, bottom, or beside, the list of search results Google displays for a particular search query.
Trade mark owners in Australia may have various causes of action at law against advertisers using their trade marks in keyword text, including the following:
1. trade mark infringement, proceedings pursuant to the Trade Marks Act 1995 (Cth);
2. breach of the Australian Consumer Law under various sections of the Competition and Consumer Act 2010 (Cth), such as misleading and deceptive conduct; and
3. common law breach of passing off.
And now Google provides an alternative path for resolution of trade mark infringement in relation to Ad Words.
In certain countries, including Australia, advertisers need to comply with the new policy if they want to use a trade mark in keyword advertisements. The new Google policy came into effect on 28 July 2014 and is relevant to advertisers that resell goods or services using trade mark keywords. Google gives guidance on the use of trade marks in keywords as follows:
‘There are multiple factors that determine when trademarks can be used in AdWords text ads. Along with the factors described in our Policy Resource Centre, these policies apply only to trademarked terms where the owner submitted a valid complaint to Google and requested that the terms be restricted in Google text ads.’
Advertisers should exercise caution with keyword advertising, now more so than ever. They should be aware that they may be operating outside the new policy by using trade marks not owned by it. The practice of using competitors’ trade marks as keywords to attract clicks from paid advertisements or sponsored links may now contravene the new Google policy.
Google has the ability to review advertisements placed on their AdWords service that have potentially infringed trade marks. This can be facilitated through its complaint system.
If a trade mark owner files a complaint with Google about the use of their trademark in AdWords ads, Google will investigate and may enforce certain restrictions on the use of that trademark in AdWords text ads. The enforcement actions that Google may take include removing the infringing advertisements or restricting key words that are deemed to potentially infringe the trade mark. It is important to note that Google is not a third party arbiter, and have no influence beyond their own advertising portals and mediums.
Rather than pursuing traditional legal remedies, this new Google complaint system may be a quicker, effective and cheaper option for businesses attempting to stop competitors from infringing their trade marks via this advertising medium. So think next time you click.
Posted on: 7 October 2014