Use of trademarks as keywords, metatags and adwords on internet search engines?
So we ask, is the use of a competitor’s trademarks as keywords, metatags or adwords on internet search engines, such as Google permissible?
If you are the owner of a registered trademark, you would not be pleased if a competitor was using your trademark as a keyword, metatag or an adword to generate sponsored links to its own website. In any other context, use of a trademark for a similar business or activity would be regarded as trademark infringement. However, the use of trademarks in a search term context is far from clear. Search engines argue that they are a mere conduit, and have no general obligation to monitor illegal activity by internet users.
Trademark owners dispute the use of trademarks as keywords, metatags or adwords by anyone willing to pay the asking price. Popular trademarks can command some considerably high sums. The most recent example being the use of ‘Interflora’ by UK retailer Marks & Spencer to link to its own online mail order flower service. It has been reported that in the days before Valentine’s Day the price per click rose dramatically, as M&S, Interflora and Flowers Direct all attempted to outbid each other. It is reported that the estimated value of lost business to Interflora for Valentine’s Day was in the region of £350,000.
The UK courts decided in this case, as well as others that since the matter is based on EC law the matter should be referred to the European Court of Justice, and we expect that it will be some time before we have a decision on the legitimacy of this issue. Therefore, until such time a decision is made by the ECJ the position is unclear. This does not mean that a competitors trademarks can be used for search engine advantages. Infringers can be held liable for actions such as passing off and trademark infringement.
What should you do in the meantime?
Until such time the ECJ makes a ruling on the subject, all trademark owners should be on guard and regularly check search engines by entering their trademarks into search engines to check which competitors or products are being displayed as sponsored links, or in the search results generally.
If your trademark is being used as a keyword, metatag or adword, then a complaint can be made to the search engine. As the trademark owner, you should also investigate, collate and document how the competitor’s use of your trademark is affecting your business.
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