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.