May the 5th can be seen as a seminal point in trade mark history in the web 2.0 epoch. No longer does Google have a policy of disabling keywords for registered trade marks following a substantiated complaint.
All previously disabled keywords will now be enabled allowing competitors to purchase each others brand or trade names as keywords.
Google has provided an explanation for this change in policy here:
My personal view is that this is in response to the Mr Spicy case (see previous Blogs on this) which held that a search engine was not liable for selling keywords that were registered trade marks as they were using the mark in relation to different goods and services. Obviously, the administration burden on Google in dealing with these complaints is dramatically reduced.
A number of commentators have suggested that this re-enablement will increase the cost of advertising via keywords because the brand owner will have to bid against their own trade marks with competitors.
All is not lost however as Google will still be providing a courtesy investigation into complaints where registered trade marks are used in the wording of the actual advert but not the keyword.
What is untested is whether a trade mark owner can take civil action against a competitor (leaving Google out of the picture) who purchases a keyword for that trade mark. Logic would dictate that such a claim would be successful if the competitor is using an identical trade mark for a keyword in the course of trade (ie to further its business).
Whether the purchase of a keyword infringes a trade mark for similar marks that confuse the public is another matter, especially where keywords are hidden from the public in the coding.
This is a very uncertain area of IT and trade mark law. There must be a test case in the pipeline to determine whether a competitor is infringing a trade mark by purchasing it as a keyword........
Until then...... watch this space!
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