Keyword Advertising is a multibillion-dollar business for Google and other search engines˳ There has been a lot of debate over the last several years about the appropriateness of using someone else’s trademark as a keyword trigger or in the text of any particular ad displayed through the Google AdWords program˳ Google shows text-based advertisements based on search terms entered by end users˳ In addition to the organic search results, Google displays advertisements, created and paid for by advertisers, which links to the advertiser’s web site˳
AdWords is a Google program through which advertisers purchase terms (keywords)˳ When an advertiser uses the Google Search Engine, which includes a keyword trigger, the advertiser’s ad appears with the link to the advertisers predetermined web site˳ Advertisers pay Google based on the number of times Internet users click on the advertisement˳ For example, Company Y, a company engaged in the business of motorcycle repair, can cause Google to display its advertisement and link whenever a user of the Google Search Engine searches for the term “motorcycle repair˳” Company Y can also cause its ad and link to appear whenever a user searches for the term “Company X”, who may be a competitor of Company Y in the motorcycle repair business˳ Thus, whenever a searcher interested in purchasing motorcycle repair services from company X launches a search of the term X (Company X’s trademark), an advertisement and link would appear on the searcher’s screen inviting the searcher to the motorcycle repair services of X’s competitor, Company Y˳ If the searcher clicks on Company Y’s link, Company Y’s web site would open on the searcher’s screen and the searcher might be able to purchase Company Y’s motorcycle repair services˳
Google also employs a keyword suggestion tool that recommends keywords for advertisers to consider˳ The program is designed to improve effectiveness of advertising by helping advertisers identify keywords related to their areas of commerce˳ Thus, consistent with the example above, if Company Y used Google’s keyword suggestion tool, the tool might suggest to Company Y to purchase not only the term “motorcycle repair” but also the term “X”, its competitors brand and trademark˳
The AdWords’ advertisements are generally associated with a label that says, “sponsored links˳” Google has been involved in a variety of litigation involving its allowance of competitors to use each other’s trademarks as keyword triggers and in the text of advertisements˳ Google’s objective, clearly, is to sell more keywords to advertisers so it can make more money˳ Trademark holders sometimes sue Google for allowing the practice, but more often the competitor who bids on the trademark-protected keyword˳
This is a fairly new and complicated area of law, which will typically require analysis and attorney advice˳ The issue of whether or not a particular keyword trigger and contextual ad violates a third party trademark, the third party trademark is always one that is fact specific˳ Two key issues involve whether or not the keyword trigger amounts to “use in commerce” of a third party trademark as that term is defined under the Lanham Act, the trademark statute˳ The second is whether or not consumers would likely be confused by the advertisement displayed and the landing page of the advertising link˳
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