Search Advertisement Keyword Trademark Infringement
Wednesday, February 1st, 2006
In the beginning, there was the internet, and then there was real life. They were two completely individual, separate entities; one did not need to interfere with the other, and all were content. It was with the growth of the internet that “real life” began to take notice. Before long, the line between the two began to blur, and all sorts of controversy erupted concerning copyright infringement, intellectual property, and identity in a medium that was hardly tangible. This controversy continues even today; we are constantly subject to new problems, mistakes and dilemmas when it comes to what’s allowed in real life and what’s allowed online.
Let me get to the point. There exists a great deal of frustration currently when it comes to trademark infringement in online searching. Let me explain: when you search up a keyword on, say, Google, you will be returned not only a page of search results, but advertisements. These advertisements are put up by advertisers who have entered that keyword — the one you searched — into their campaign. So, say, if you were to search up “ketchup”, you’d receive results and ads for all sorts of things associated with ketchup. Now, what if you were to enter “Heinz ketchup”?
That’s a trademark of a specific company, but any advertiser can, in theory, enter that keyword so that their ad is returned when you search Heinz. Acme Ketchup Co. can, if they satisfy a complicated list of requirements, have the top ad placement when you search for their competitor. The problem exists herein: is it legal for an advertiser to associate their ad with a keyword that is a registered trademark of their competition?
In some cases, such as Coke and Pepsi, companies come to agreements that allow them to use each other’s trademarks to further their own advertising campaign. It is safe to say, however, that most of the time, two competing companies will not have approached this agreement. Is it fair for Acme to gain business from Heinz searches? Should trademark law apply here, in the virtual world of the internet, where things are possible that just aren’t in real life?
France’s Tribunal de Grande Instance de Nanterre has twice ruled that no, this is not okay. In two instances they have ruled in favour of trademark owners, determining that it is illegal for search engines to permit advertisers to include trademarked keywords in their keyword lists when not associated with the company bearing that trademark. However, the United States District Court for the Eastern District of Virginia has ruled the opposite — in the case of GEICO versus Google, the court ruled that GEICO had not submitted sufficient evidence that the sale of the GEICO trademark as a keyword constituted infringement.
There does not yet exist a final rule when it comes to keyword trademark infringement. Each instance must be settled individually in or out of court in the country in which it applies. Gone are the days of the untouchable internet, during which an intelligent, tech-savvy elite could evade the law by utilising new techniques that had never before been imagined by the lawmakers and thus never outlawed.
