Saturday, September 27, 2008

Your adword is my trademark!

Dear Rich: I have a question. I own a small service business. A few months ago I registered my trademark. I intend to advertise via the Internet but I heard that under Google's trademark policy, bigger competitors can outbid me for the search engine rights for my trademark. So, when possible customers type my trademark in the search bar, the website will display my competitors. Is that legal?I'm so glad you asked. Yes, Google's trademark policypermits the sale of your trademark as a keyword (or in Google's case, an 'adword'). (For readers who are unaware, keywords/adwords are words or phrases sold by search engines to advertisers. When a searcher types the adword into a search engine, an advertisement related to the adword appears on the search results page.) In the case of Google, the purchase of keywords has no effect on actual search results, only on the paid advertising that appears on the right side of the page or above the search results within a colored band.

To give you an example of how it works, many of Nolo's competitors have purchased the keyword "willmaker," which Nolo has registered as a trademark for its estate planning software. If you type "willmaker" into Google, a series of ads from Nolo competitors will appear on the right side of the search results page. (As a practical matter, if you complain to Google, Google will usually remove ads that contain your company's trademarks within the text of the advertising.)
You're not the first person to complain about the keyword/trademark practice. The key issue, as with most trademark disputes, is whether consumers are confused and so far, U.S. courts have not found the practice to be confusing. For example, one court held that consumers were not confused by Google's sale of the keyword Geico, and another permitted Google's sale of the (PDF). The issue becomes more complex outside the U.S. In France, a court ruled against the practice in 2005. Of course, some trademarks may not trigger any ads. The Dear Rich staff is sad to report that when you type "Dear Rich" into your engine, not one advertiser appears.

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