Updated November 25, 2020:

Trademark Infringement on Google Adwords

Google Adwords trademark infringement is a hot topic in the intellectual property world. Online advertising keywords are words or phrases that help an advertiser target services and products to a specific audience. When using a search engine, an online user might type in one of these keywords, which will prompt ads from the company that selected that specific keyword for targeted advertising. One of the tools that helps companies select and target keywords is Google Adwords, one of the most common ways to advertise on Google and other search engines.

Using a phrase or word that is registered as a trademark is a common practice when targeting audiences. According to the European Court of Justice, providing a keyword that is identical or close to a registered trademark isn't the same as using the trademark when doing business. Additionally, the court ruled that this practice doesn't violate the TM Directive 1989, which included a principle stating that competitors using the keywords of the trademark without due cause would be detrimental to or take advantage of the distinctiveness of the mark. Although this law was later repealed and replaced by TM Directive 2008, the policy still stands.

The updated policy of Google Adwords reflects the ruling by the European Court of Justice, providing a form in which a trademark owner can submit dissatisfaction with the use of keywords protected under a trademark in Google Adwords. When including a trademark in the text of an advertisement, Google can look further into the matter and restrict the usage of a trademark in the ad. 

Exceptions exist in the following locations:

  • Canada
  • United States
  • Australia
  • United Kingdom
  • New Zealand

These exceptions allow for use of trademarks in the text of an ad in authorized ways, as well as on informational and reseller websites. The trademark is allowed to be used if components or the product is the main option available on the main landing page. If the owner of a trademark has authorized the use, someone else can use it in ads as well. The process of approval involves filling out and submitting Google's authorization form.

Trademark Infringement: Can I Bid on My Competitors' Trademarks as Adwords?

As more consumers rely on search engines to find websites and products, search engine optimization is a major aspect of a business's marketing plan. If a company doesn't want to spend the time to organically improve SEO with specific keywords, they might choose to buy keywords, also called Adwords, from search engines like Google. Using these keywords may help a company put its website at the top of the list on search results, as quickly as overnight.

When buying keywords, the Google Adwords customer will select one word or multiple keywords that describe the goods or services available on that customer's website. Recently, Google started offering a campaign of keywords available for purchase in any particular industry. The customer can determine certain aspects of keyword targeting, including time and geographical area. Search results can include competing products or competitor names, resulting in a more robust search. Competitors of a trademark owner might show up right next to the search results for a specific keyword.

Before 2004, the trademark usage policy restricted trademarks from being used within a sponsored ad's text. Google's policy also restricted using keywords that protected under a trademark if the owner of that trademark requested it. However, Google has since lessened the restrictions under the policy, which allowed customers to purchase trademarked keywords, even if the trademark owner objects. Doing so risked litigation against Google, but the increased risk of legal action for the tech giant and its partners was worth the higher revenue that the company expected as a result of changing its policy.

Additionally, Google offers a keyword tool that allows customers to look for trademark-specific words and phrases. The customer could bid on those trademarks for their keywords. However, Google still blocks trademark usage within advertisement text since studies show that allowing customers to freely use trademarks within the text of an ad can cause confusion for customers who see it during a web search.

If you need help with Google AdWords trademark infringement, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.