So Google is planning to relax its current restrictions and allow keyword advertisers to bid for trademarks and brand names belonging to other companies, including competitors. This means that Company A can bid for keyword searches on Company B - and display an ad in search returns for Company B’s name. Clearly this raises issues for both consumers and company lawyers.
From the consumer perspective, it seems slightly odd that Google is going down this route. One of Google’s stated missions is to “organize the world’s information and make it universally accessible and useful”. Serving up the wrong brand terms against specific brand name searches could cause confusion and even lead some consumers to adjust their respect for the integrity of Google’s search processes.
As far as I can ascertain (and I’m no lawyer), the legal position is complicated. Google is using trademarked terms in its search algorithm. The issue is whether or not a company can prove that there has been a trade mark infringement or passing off. Under the terms of trade mark law this occurs where you use someone else’s name so as to capitalise on their goodwill. For this to apply you have to be actually displaying the name – when the law was drafted the concept of google ad word searching could not possibly have been imagined.
Assuming that Google has not made this move to stimulate mass class actions, it must have done its legal homework and be confident that no case for trademark infringement can be brought against it. It is interesting that these issues are emerging faster than the case law. It may be that that the law itself has to change and that can only come if advertisers feel they are being sufficiently disadvantaged to make them consider lobbying. In the meantime, consumers will have to get used to searching for one thing and being served another - certainly as far as paid search goes.
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