Effect Of Google's 'Trademarked Keywords' Policy On Digital Marketing Advertisers

In September 2010, Google changed the keyword policy for its Google AdWords programme in Europe. This change allowed third parties to bid on trademarked keywords, which had previously been restricted from bidding. Four bodies of digital marketing advertisers in Europe strongly criticized the introduction of Google's new trademark policy, branding it as 'unhelpful' and 'costly'.

According to the World Federation of Advertisers (WFA), a global trade union of digital marketing advertisers, the change was seen as being 'unhelpful', especially to companies that owned specific brands. This change was expected to increase digital marketing expenses of brand owners who wished to protect and promote their brands, on the Internet. The WFA also expressed regret that trademark owners were not consulted by Google before making the change.

The WFA was supported in its protest by the Incorporated Society of British Advertisers (ISBA), which represents various digital marketing advertisers in Britain. Referring to 2008, when Google had launched the same service in Britain, ISBA said that the Internet giant 'risked repeating its communications gaffe'. Responding to the statement from the WFA that digital marketing advertisers were not consulted, a Google spokesperson pointed out that this change was announced months ago, when Google had stated its position with regard to the trademarks issue.

Two other associations of digital marketing advertisers that issued criticisms of Google were the European Brands Association (AIM), and The European Cultural and Creative Industries Alliance (ECCIA). While the AIM criticized the change strongly, and wrote off the new trademark policy as 'premature'; the ECCIA expressed concern that the new policy could result in trademark infringements.

In March 2010, in a case between Google and three brand owners, The European Court of Justice had ruled that the AdWords system does not violate trademark rights by allowing advertisers to bid for the same keywords as their competitors' brands. The court also found that digital marketing advertisers who did not own a brand "would be liable for trademark infringement if their ad confused consumers as to the origin of the goods".

Google said that they believed that their new trademark policy was compliant with this ruling, and would benefit the majority of users rather than being 'unhelpful'. According to the new trademark policy, a digital marketing advertiser can trigger an ad related to a trademarked product, only if it sells the particular product. As always, it is the duty of the advertiser to create ad creative that is within the law. In addition, Google will allow brand owners to lodge a complaint against another advertiser, if they feel that the content in a particular advertisement confuses searchers about the origin of the trademarked good/service. In such cases, Google will carry out a 'limited investigation', and remove the offending ad, if deemed appropriate.

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