Google's change in its policy regarding purchase of trademarks as keywords in AdWords

Date 8 okt. 2010

 

As of 14 September 2010, Google changed its policy regarding purchase of trademarks as keywords in AdWords. The change has been made in order for Google’s policy to be in consistency with the rulings C-236/08 – C238/08, Google against Louis Vuitton and others delivered by The European Court of Justice 23 March 2010.

 

Before 14 September 2010, it was not possible to buy trademarks as keywords if the trademark owner had blocked purchases at Google.

 

AdWords and keywords in general

AdWords are the so-called sponsored links that appear when you search in Google. This means that companies may, for money, make sure that the company’s page appears with Google’s landing page, which are the natural results that appear by an organic search, when a search is being made for specific words.

 

Hereafter, the companies pay if the person performing the search clicks on the sponsored links, so-called “pay-per-click”.

 

Keywords represent a part of the text that an advertiser uses in his AdWords, but based on the recent ruling made by The European Court of Justice, Google has changed its policy regarding purchase of trademarks as keywords.

 

Before the change, it was possible for the trademark holder to obtain a block, by contacting Google, and thereby prevent an advertiser from purchasing the blocked name. Based on the request from the trademark holder, Google subsequently made the block general or with permission for specific persons, such as authorised dealers.

 

Consequence of the change

As a consequence of the change, a trademark holder will no longer, by a general request, be able to block for third parties’ use of the proprietor’s trademark by contacting Google.

 

This means that a provider of a certain product in the future may advertise this product by purchasing keywords through Google, even though the specific keyword contains a trademark belonging to a third party. For example, a used-car dealer selling a specific car brand may use the brand without permission from the trademark holder as long as the text does not give the impression that it comes from the trademark holder.

 

An advertisor using a trademark as a keyword will still be covered by The Danish Trademark Act and The Danish Act on Marketing which means that the purchasing of a trademark as a keyword in AdWords can still not infringe provisions in The Danish Trademark Act and must be conducted in accordance with good marketing practise, cf. The Danish Act on Marketing, Section 1, and the use cannot induce confusion with other’s trade names, cf. The Danish Act on Marketing, Section 18.

 

However, in Google’s own publications in regards to the change, Google has stated that Google will no longer prohibit advertisers from purchasing keywords with the intention of advertising for competing services and goods.

 

In practise, this will mean that a proprietor may risk that when making a Google search for the trademark holder’s trademark a competitor’s services or goods appear.

 

This means that a proprietor who does not want to risk services and goods infringing the proprietor’s right in the future will have to use more resources to make sure that the proprietor’s rights are not being infringed since the general block cannot be used anymore.

 

 

If you have questions regarding the above or require additional information about protecting trademarks and the use of AdWords and keywords, please contact Attorney Thomas Weitemeyer (twe@mwblaw.dk) or Junior Associate Tim Rosenkrantz Buur (tbu@mwblaw.dk).

 

The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions of considerations.