By Joseph S. Heino
Google is making money off your trademarks and letting your competitor’s direct business to their websites via its AdWords program. As more than 70% of U.S. internet searches use Google’s search engine, Google directs a significant portion of consumers to the products and services they seek.
Nearly everyone is familiar with Google’s search engine. Web users simply type in a few words, hit enter and Google generates a list of hyperlinks to web pages identified as relevant to the search requested.
What is less understood is that Google also displays paid advertisements above or alongside the search results. To offer these sponsored links, Google relies on the AdWords advertising program. For example, using AdWords, your competitor in the printing supply industry can cause Google to display its sponsored link whenever a Google user conducts a search using the term, “printing supplies.” Your competitor can also cause its sponsored link to appear whenever the user searches for your company by purchasing your company’s AdWord trademark. Essentially, by participating in the AdWords program, advertisers are able to place their advertising in front of consumers who identify themselves as interested in certain products or services offered by the advertiser’s company.
Several trademark owners have sued Google on the grounds that the AdWords program is either likely to cause consumer confusion by creating links to competitors of the mark owner or by making it appear that the Adword user is sponsored by or endorsed by Google. Thus far, Google has successfully defended itself against lawsuits by trademark owners for infringement on the grounds that consumers are not likely to be confused by the sponsored links. Additionally, Google has prevailed on the grounds that its use of a competitor’s trademark serves as an indexing function that actually helps consumers find the products they seek.
The legality of Google’s Adwords program was recently confirmed by the Ninth Circuit Court of Appeal in Network Automation, Inc. v. CBM-CW Advanced Systems Concepts, Inc. As a result, Google continues to be free to sell its AdWords, even those which are registered trademarks, to competing business. That said, this issue is still of concern for business owners because AdWords can also be purchased by counterfeiters. Therefore, we recommend that clients regularly conduct Google searches and monitor Google search results, including any sponsored links for such infringers. Such links can be removed via Google’s takedown procedures.
Contact Joseph S. Heino (jheino@dkattorneys.com) at 414-225-1452 or your Davis & Kuelthau attorney with any questions regarding Google’s Adwords program or trademark usage on the internet.