Google Keyword Policy - Trade Mark Infringement Or Not?

On 5 May, Internet search engine Google introduced changes

in the UK and Ireland to it's online advertising policy.

The changes allow companies to bid on rivals trade marks and

brand names via pay-per-click ad slots. Google's stance is

that the changes do not amount to trade mark infringement and

that it cannot be held responsible for policing other

people's trade marks.

The new keywords bidding policy has caused serious concerns

amongst many leading brand owners within the travel, retail and

financial services industries who are now considering what

legal action (jointly or individually) they can take against

Google.

Prior to the change in its policy Google restricted

advertisers from bidding on their competitors trade marks in

its Adwords programme. A Google search for a brand name such as

"Evian" would only bring up sponsored links from

Evian itself. However, if a search was made for "Evian

Bottled Water", in addition to the sponsored link for

Evian, sponsored links for other brands of bottled water would

be brought up in cases where the retailer had paid for the

search term "bottled water".

As a consequence of the keyword policy change, competitors

can now bid on a trade mark belonging to another, so that a

search of that trade mark may bring up the competitor's

advert. Although, the trade mark owner can still stop its trade

mark from being used in the text of the competitor's

advert.

The policy changes may be due to the recent decline in

Google's paid advertising clicks. The changes are likely to

drive up the cost of pay per click advertising and hence

increase revenue for Google. Google's bidding policy for UK

and Ireland will now be in line with Google's US and

Canadian policies.

The consequences for brand owners are not insubstantial. The

cost of pay-per-click advertising is likely to increase and if

a company fails to buy the advertising space, customers are

likely to receive competitor advertising when making a search

for the brand owner's trade mark. This could certainly lead

to confusion amongst online users.

In...