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.