The Future of Keywords – Is it a trademark violation?
Google is currently in court facing questions over its policy of allowing anyone to bid on keywords used in its AdWords service. According to Google’s Terms of Service, Google considers usage of other companies’ trademarks in its AdWords headlines to be a violation. Google, however, permits usage of other companies’ trademarks as keywords that call up the advertisements. Is usage of trademarks as keywords a violation of current trademark laws?
In the early days, we had a similar string of cases: Metatags. Web designers built metatags into their design in order to get better placement on search engines. Many cases came up, as companies complained that using someone’s trademark as a metatag constituted a violation of trademark law.
And what was the result? Using metatags may or may not result in trademark violations. That’s not a very useful legal statement. If we look deeper into the metatag cases, we see that many judges had trouble understanding what metatags and search engine optimization really involved. At the heart was the issue of confusion. Trademark violations are all about confusion. Will the consumer be confused as to the source of the mark?
In some cases, the courts found that usage of others trademarks as part of metatags, we akin to hanging a sign outside the door with some else’s logo. Other courts found that “initial confusion” results. Some courts found that the usage of trademarked metatags was misleading.
Fortunately, not many of these holdings are likely to serve as precedent for future cases. Why? For one thing, most of these cases ended up in settlement. Second, metatags have largely disappeared as a valid SEO techniques. So, what does that mean to today’s lead generation professional? Can you use other’s trademarks as your keywords?
The answer is: Yes, just do it right! The internet did not change the basis of trademark law. The internet is just a new form of distribution. It did not take away the rights that asset holders (trademarks) have?
When employing AdWords make sure to only use a competitor’s trademark in a manner that falls under the laws’ fair use exception. The Lanham Act permits a non-owner of a registered trademark to make “fair use” or “nominative use” of a trademark. The fair use defenses permits non-owners to use trademarks for the purpose of description or identification. In other words, usage is permitted in cases where the consumer is not likely to be confused. It is fair use to say that “four out of five people prefer the taste of Coke to Pepsi.” In this case the keyword Pepsi can be used to bring up an ad for Coke Usage here is for descriptive or comparative reasons. It does not confuse the consmer.
Apply the same line of thought when designing your keyword strategy.
Always ask: Will the consumer be confused as to the source of the ad? If you have any questions, feel free to run ideas past us. We examine many online advertisements and can point you in the right direction quickly.
