From 23 April 2013, Google’s Trademark Adwords policy will be updated so that Google will no longer restrict advertisers purchasing and using trade marks as keywords in Google Ads (previously known as sponsored links). These changes affect Australia, China, Hong Kong, Macau, Taiwan, New Zealand, South Korea and Brazil and bring the Australian Google Adwords policy into line with the rest of the world.

This policy change follows the High Court's finding that Google was not responsible for the content of third party Adword advertisements (formerly sponsored links) displayed on Google search result pages (see http://www.davies.com.au/pub/detail/683/google-not-responsible-for-misleading-and-deceptive-adword-advertisements-high-court).

How will the change to the google keyword policy affect trade mark owners?

Below is an example to illustrate the change:

Company A and Company B are competitors.  Company A has purchased and is using Company B’s trade mark as a keyword to trigger its Google Ad. When a user enters the trade mark into the Google search engine, an ad appears in the Google Ads section (previously the Sponsored Links section).

Regime before 23 April 2013: Company B could file a Trademark Complaint with Google complaining about use of its trade mark as a keyword and Google would restrict Company A from bidding on the trade mark as a keyword.

Regime after 23 April 2013: Google will no longer intervene to restrict Company A using Company B’s trade mark as a keyword.  In addition, if Company B had previously filed a Trademark Complaint, Google will no longer restrict that use.

What can trade mark owners do to prevent use of their trade marks in google ads?

Despite this policy change, trade mark owners still have the following options:

  1. to complain to Google about unauthorised use of their trade mark in Ad text.  In other words, trade mark owners can still complain if their trade mark is being used in the text of the Google Ad.  Google will restrict this use;
  2. depending on the circumstances, to take action under the Australian Consumer Law 2010 (Cth) directly against the advertiser (in the above example, Company A) if the advertiser's use of the trade mark is likely to mislead or deceive the public into believing that when they click on the Ad they will be taken to the trade mark owner's website or into believing that the advertiser or its goods/ services are somehow associated with the trade mark owner or its goods and/or services.

Implications for trade mark oweners in relation to google adwords

All is not lost!  Based on the material before the High Court, the public understands the difference between Google Ads (formerly sponsored links) and organic search results.  As such, consumers appreciate that the Google Ads that appear at the top or to the right hand side of organic search results are just that, paid advertisements and that the organic search results are those of the trade mark owner.  Now that Google has avoided responsibility in the High Court of Australia, it would appear that Google is taking a more relaxed approach to its Adwords policy.  Trade marks owners can still take advantage of other avenues for recourse against advertisers.

The new policy is already in effect in all other regions throughout world.

To learn more about this trademark policy revision, visit :http://support.google.com/adwordspolicy/answer/177578?hl=en&rd=1