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The use of trade marks in Google Advertising

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The Use Of Trade Marks In Google Adwords Keyword advertising is the practice of strategically placing sponsored links (that are highlighted as such) when a particular term is searched for, so that the “ad” appears above and/or beside the ‘natural’ search engine results. Companies bid for the right to have their ads displayed when particular search terms (“keywords”) are typed into the search engine. Market leader Google, operates the largest keyword advertising network called AdWords. AdWords accounts for the majority of Google’s revenue.

Companies are not limited to advertise using only their own brand or product/service description, but they can “purchase” as keywords, generic terms or names and phrases related to their competitor’s business. With some creativity, a company can therefore link its advertisement to the results of a search query related to its competitor. As a result, company A’s ad may be displayed when a search engine user looks for goods or services of its competitor B. Usually, company B has a leading position in the marketplace and is displeased to see how it loses potential business due to exploitation of its brand. To lawyers the most controversial AdWords issue is the use of a rival’s trade mark as a keyword.

Internationally, the laws have not been uniform as to what keyword advertising practice is unlawful and what is permissible. It is still not decided definitively in Australia. MST provides an analysis of the laws in Europe, but in short advise that the best way to protect your business is to ensure you have a registered trade mark. Even if you have not thought you needed a registered trade mark before, now you should, to protect yourself in the on-line environment. Also, now more than ever, as some of the case law shows, it is important to have distinctive and memorable trade marks, rather than using generic names.

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Author: Marianne Dunham & Jiannis Koudounas