Recognizing The Real Issues Associated With Trademarked Keyword Ads

from the it's-all-about-the-confusion dept

We’ve covered this topic many times before, but almost every article on the subject seems to ignore the real legal issues involved… until now. The question is about whether or not Google should be able to sell ads based on trademarked keywords. As we’ve pointed out before, trademark law isn’t about giving the owner complete protection over the trademark, but rather about avoiding customer confusion. Thus, using trademarked terms in ads is only trademark violation if the ad somehow implies that the company advertising is a different company, or that it endorses the company in question. It’s certainly possible that ads could constitute trademark infringement, but it depends on what the ads say. LocalTechWire is running a good overview of the real legal issues surrounding advertising on trademarked terms, noting that companies are likely to claim “initial interest confusion” — saying, basically, that when a searcher first spots the ads, they may be confused. This may be a pretty difficult argument to make, as it’s pretty easy to distinguish an ad from a search result on Google. Even more importantly, if they can somehow suggest people can’t distinguish between the ad and the natural search results, they’ll have to show that the ad is somehow confusing in a way that would harm their brand. This may be provable on a case-by-case basis, but it will be tough to make that claim across the board on all Google ads.

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