Clients often ask us is whether they or their competitors are infringing trademark law by using trademarks as part of their ‘keywords’ in their Google AdWords strategy
The general principle that the courts seem to be measuring cases against is whether the consumer will be confused by the Google ad, and likely to mistake one brand for another. It is assumed that consumers are now sophisticated enough to understand that such pop ups are adverts related to their search. As long as the advert is not misleading customers into believing that products come from the owner of the trademark being searched, it is understood that the consumer will realise it is a competing product. This was effectively the finding by the CJEU (The Court of Justice of the European Union) in the Louis Vuitton case. The courts concluded that the trademark was in effect a ‘badge of origin’ and that as long as anyone using a trademarked brand is not claiming “origin” then no infringement has occurred.
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A caveat to this is the recent case of Marks and Spencer vs Interflora, where the UK court (advised by the CJEU) concluded that the consumer could easily be misled into believing that Marks and Spencer were offering an Interflora service. The court found against Marks and Spencer, declaring that the onus is on the advertiser to ensure that there is a clear distinction from a protected registered brand.
Google has distinct and clearly defined procedure on dealing with trademark disputes. It will act on complaints received from a trademark owner, where the alleged infringer is including the trademark in his/her own Google ads. However, they will not respond where a competitor is using a protected registered brand if it is used in keywords on the site or in Google AdWords. Read more about the Google trademark procedure.
If you need help registering a brand, logo or product design please do not hesitate to contact us on 01223 208 624.
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