Trademark Flash®
New policy Google with respect to trademark use in Adwords since 15 September 2010
15-09-2010
To act against the use of a trademark as keyword in an Adword campaign has become much more difficult since 15 September 2010.
Until 15 September 2010 Google had the policy that, on request of the trademark owner, they would remove an keyword if a registered trademark of the trademark owner was used as keyword in order to place an paid advertisement in the Google search engine. Moreover Google blocked the way for this advertiser to use the same trademark as keyword again.
Google has however changed her policy from 15 September 2010. A complaint with respect to the use of someone elses trademark as a keyword is now under , a though limited, examination by Google.
Google examines if the keyword, as such or in combination with the advertisement text, could cause confuse on the part of the public with respect to the origin of goods or services for which is advertised. The confusion could for instance exist in the suggestion that there is a link between the advertiser and the trademark owner or the suggestion that the offered goods or services originate from the trademark owner. In those circumstances Google, at his own discretion, concludes that indeed there may be a danger of confusion and the advertisement as places in the serach engine as well as the keyword will be removed.
With this policy Google follows the most recent European case law with respect to the use of keywords in Adword advertising on its search engine.
The highest court in the European Union, the Court of Justice decided that that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertisement does not enable an average internet user, or enables that user only with difficulty to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party. (HvJ EU 23 March 2010, C-236/08, C-237/08, C-238/08 (Google against Louis Vuitton, Ciaticum en CNRRH), HvJ EU 25 maart 2010, C-278/08 (BergSpechte) and HvJ EU 8 juli 2010, C-558/08 (Portakabin/ Primakabin).
For the sake of completeness we hereby inform you that the new policy is not (yet) in use for all regions in the world. Before, there were also differences between the European continent and the United Kingdom and Ireland. As a result of the recent court cases the policy in the EU and EFTA countries is harmonised. For regions outside Europe it still applies that in principle the advert based on a keyword containing someone elses trademark will be removed by Google on request of the trademark owner.
It is Google's purpose to harmonise their policy throughout the world as far as possible. They are though bound by local legislation and case law.
