The European approach to keyword advertising – a review
For a review of the approach in Europe to keyword advertising, see this report by Dorsey.
Norway rules 3rd party trademark AdWords contrary to good business practice
The Norway Committee for Unfair Competition has found that the purchase and use of a competitor’s trademark as a Google Adword is in breach of good business practice.
Bryn Aarflot reports that the committee stressed that the goodwill in a trademark is what causes the internet user to use the term as a search term in the first place, and unauthorised use of such mark takes unfair advantage of the owner’s reputation and efforts.
The Committee issues advisory opinions in cases where there has been a breach of the Marketing Control Act. It cannot instruct a party to take action or to cease activity; however, most upstanding businesses will follow its recommendations and stop their infringing activity.
The Committee’s decision also often carries weight if a case proceeds to court.
US FTC warns search engines on misleading ads
The US Federal Trade Commission has told various search engine companies to tighten up their practices when it comes to paid advertising that appears on a search results page, reports Graydon Head.
In its letter to the companies, the Commission requests that the shading that sets the ads apart be prominent enough so that the background doesn’t get lost, especially on mobile devices. It also wants prominent text indicating what’s an ad.
The Commission is reacting to survey results that showed that 62% of searchers were not aware of the distinction between paid and non-paid results.
New proposals for opening up second level .nz domain names
The .nz Domain Name Commission (DNC) has found there is no clear consensus for – or against – the proposal to allow registration of .nz domain names directly at the second level.
A major concern expressed by some submitters to the DNC was that existing registrants could feel “forced” to incur extra costs in registering anyname.nz on top of their existing anyname.co.nz name.
To mitigate this issue, DNC is proposing that existing registrants be able to reserve registration of the equivalent of their current name at the second level (for no cost for at least two years).
DNC believes this modified proposal delivers significant benefits to registrants without disadvantaging those who do not wish to use a name at the second level.
There are also other changes to the proposal following the initial consultation.
Google Adwords in the UK: Use of competitors’ TMs as keywords OK… sometimes
See Reed Smith’s report of Mr Justice Arnold’s detailed judgement in the Interflora v Marks and Spencer case on trade mark infringement as it relates to keyword advertising.
It is clear from the judgment that nothing is inherently wrong with bidding on and purchasing keywords that are trade marks of third-party competitors.
However, if there is any room for confusion as to the origin of goods or services, advertisers will need to exercise some caution. This is so even though Google labels paid for search terms as “Ads”.
Amazon’s internal search engine use of trademarks not an infringement
A US federal court has ruled that an ‘AdWords’-like use of trademarks in an online retailer’s search engine does not constitute infringement.
As Schiff Hardin reports, Amazon is one of many online retailers that uses an internal search engine that sorts through branded and trademarked goods. Amazon was sued for trademark infringement by Multi Time Machine, Inc. (MTM) because when a consumer searched the site for “MTM special ops”, the Amazon search results delivered a collection of watches sold by MTM’s competitors.
The court in Multi Time Machine, Inc. v Amazon.com granted Amazon summary judgment. It found that no reasonable trier of fact could find a likelihood of confusion resulting from this “use” of the MTM trademark in generating the search results.
This decision reinforces the trend set by the Ninth Circuit in Network Automation, Inc. v. Advanced Systems Concepts, Inc., which cautioned that courts must be “acutely aware of excessive rigidity when applying the law in the Internet context; emerging technologies require a flexible approach”.
Use of competitor’s trademark as keyword is OK in France
The French Supreme Court has reaffirmed that a company is allowed to use its competitor’s trademark as a keyword in Google’s paid referencing service AdWords, reports Hogan Lovells.
Google revises AdWords policy to permit use of third party trademarks
Google has announced that AdWords keywords that were restricted as a result of a trademark investigation will no longer be restricted in China, Hong Kong, Macau, Taiwan, Australia, New Zealand, South Korea, and Brazil.
Google’s policy revision, which takes effect on 23 April 2013, follows its recent success in Australia litigation.
The High Court of Australia held that Google was not liable for any misleading use of the AdWords service by advertisers who pay Google to display sponsored links in response to search terms containing the trademarks of third parties.
Google not liable for misleading auto-generated search terms
A US court has ruled that automatically-generated search terms that are misleading do not constitute a common-law misappropriation or an invasion of privacy.
Dissatisfied with the results of internet searches for her name, Beverly Stayart launched a legal campaign against internet search engines. In her third lawsuit, she contended that Google was in violation of Wisconsin misappropriation laws because a search for “bev stayart” may lead to a search for “bev stayart levitra,” which in turn may lead to websites advertising drugs to treat male erectile dysfunction.
The district court found she had failed to state a plausible claim for relief. The Seventh Circuit dismissed her appeal because the use she alleged fell within two exceptions: public interest and incidental use.
First, Stayart had made the challenged search phrase “bev stayart levitra” a matter of public interest by suing Yahoo! over it in 2010 – and as a matter of public interest, that phrase cannot serve as the basis of a misappropriation suit.
Secondly, Stayart had not pleaded any facts showing a substantial connection between Google’s use of her name and its efforts to generate advertising revenues, triggering the incidental-use exception to Wisconsin’s misappropriation laws.
ICANN announces launch date for Trademark Clearinghouse
ICANN’s Trademark Clearinghouse (TMCH) for new gTLD applications will open for registrations on 26 March 2013.
According to the ICANN announcement, the TMCH is “the cornerstone of the rights protection mechanisms” built into ICANN’s new gTLD program. The TMCH is open to any trademark holder, without geographical limitation.
The TMCH is set-up to provide brand protection through two mechanisms:
- The Sunrise Service period, during which a trademark owner with a validated trademark registration in the TMCH can register the domain name that exactly matches their trademark.
- The Trademark Claims service, whereby a prospective domain name registrant is warned when attempting to register a domain name that matches a trademark in the TMCH, and the trademark holder is notified if the application proceeds to registration.
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