Following a series of recent judgments by the European Court of Justice on the issue of the use of trade marks in keywords, Google has announced a relaxation of its policy on the purchasing of trade marks in its own Adwords keyword advertising system bringing its European practice much more into line with that which it applies in the United States.
As of the 14th September 2010, Google will allow the purchase of one trader's trade mark as a keyword to trigger advertisements for a competitor's advertisement across all European countries. Although Google is introducing a new notification and take down procedure for continental European countries this is a significant departure of practice.
Lessons for brand owners
Brand owners will have to be increasingly vigilant in monitoring competitor's keyword usage. They must register their brands as fully as possible to give them the widest scope of protection if enforcement actions are to be taken either through the courts or via the Google new notification and take down procedures.
A bit of history
Google's AdWords system is the key to the success of its business model. In January 2010, Google announced total fourth quarter profits of $1.97 billion as global revenue jumped 17 per cent to $6.67 billion compared to a year earlier. It is estimated that around 16 percent of this revenue derives from the United Kingdom.
Keyword advertising is based on purchasers bidding for certain keywords which trigger an advert which is displayed alongside the natural search results which are generated by a search engine and in the case of Google by its world famous search algorithm.
There have been a whole series of cases over the last few years both in the United States and Europe on the use of trade marks in keyword advertising. For example, in theory Coca Cola could bid on the keyword, Pepsi Cola, which happens to be a registered trade mark, and trigger an advertisement for Coca Cola, at the side of any natural search results for the term Pepsi Cola.
Although there has been some variation in decisions from case to case, courts in the United States have tended to take a much more liberal attitude to the use of trade marks as keyword advert triggers. Whereas courts in continental Europe, and especially in France, historically took a much stringent and literal line on the use of trade mark in keywords generally finding in favour of the trade mark owner and preventing their use by a competitor of the trade mark owner...