UK Court Recognizes That Keyword Advertising Isn't A Trademark Violation

from the mr-spicy-mr-spicy-mr-spicy dept

While US courts have gotten much better lately at realizing that keyword advertising is not, by itself a violation of trademark law, judges in some other countries have had trouble recognizing the same thing. France, in particular, seems to have judges who consistently are confused over the matter. Remember, the purpose of trademark law is not to give total control over the mark to the holder, but to prevent consumer confusion. It's so they're not tricked into buying Bob's Cola thinking that it's Coca Cola. If someone does a search on a trademarked term, and it shows a variety of ads, including from competitors to the holder of the trademark, that's not a violation of trademark -- it's just competition. It certainly isn't trademark infringement on the part of the search engine, who is merely hosting the ad. If anything, it might be trademark infringement on the part of the advertiser, but only if the ad itself is somehow designed to confuse the consumer.

Thankfully, it looks like the High Court in the UK has recognized the issues at play and has come out with a ruling more like the American courts than the French courts, noting that there is no trademark violation for search engines in these cases. This specific case involved Yahoo, who was getting sued by someone who owned a trademark on "Mr Spicy." He claimed that competitor's ads were showing up when someone searched on "Mr Spicy." That was true, but it wasn't even because anyone had set up keywords on "Mr. Spicy." They had merely set up keywords on "spicy," which still showed up on a search for "Mr Spicy." Of course, even if it had been on "Mr. Spicy" it wouldn't have mattered much, since it still wasn't Yahoo's issue. Also, the court seems to recognize that since the ads themselves don't even refer to Mr Spicy, it's hard to see how there's any loss or confusion that would violate the trademark. Hopefully other courts around the world will start employing similar logic as well.

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