Andy Atkins-Kruger

Google initiates trademark bloodbath in the UK

Google has changed its trademark policy for the UK and Ireland bringing it into line with its policy for the US and Canada. What this means in practice is that for trademark complaints relating to its Adwords programme, from now on Google will take NO further action relating to the trigger keywords. It will, however, continue to support requests relating to the use of trademarks in the creative – in other words in the sponsored links. See a typical notification below. The new policy comes into force from the 5th May – but the deadline for new trigger keyword applications was effectively the 4th April.

What does this mean in practice? For the last few years, Google has had a Europe-wide policy which enabled trademark owners to restrict the use of their trademark by others in the Adwords programme. However, Google has steadfastly avoided implementing this in the US and where any case has been brought against them – they’ve generally settled out of court.

Google didn’t offer a registration system in Europe out of the kindness of its heart or through respect for the different European cultures; it was prompted through a number of legal cases – notably in France – where Google was fined for trademark infringement.

So let’s just look at what Google is saying now. A UK or Irish company that invests in products offering a certain value represented by a name or brand and registered as a trademark – such as ‘webcertain’ (registered as a trademark throughout Europe) – find that people search for ‘webcertain’ in Google. It’s a route to find the supplier which offers a known service or product. Until this week, it was not possible for competitors to use this trademark to promote themselves either in the trigger keywords or in the creative.

From now a competitor offering copycat products can use that registered trademark in its keyword bidding – just not in the creative. It’s a complex area and ‘webcertain’ is relatively straightforward and specific – not all trademarks are single word specific words such as this. However, is it right that people searching for ‘webcertain’ are diverted to alternate suppliers. Coca Cola would not accept customers requesting Coca Cola being offered Pepsi Cola. Disney would not accept customers looking for it being sent to some other cartoon producer.

What this also means is that if I bid on my trademark – the price I have to pay per click will be elevated by anyone being allowed to compete to appear on the screen. So as the trademark owner – I will have to pay MORE to bid on my own trademark.

Behind the decision is the idea that Google cannot be held responsible for policing other people’s trademarks. In their statement, they say “Our trademark complaint investigations will no longer result in Google monitoring or restricting keywords for ads served to users in the UK and
Ireland.” Google is trying to say, “We won’t investigate this any more – it’s not our fault.”

The majority of cases I have been involved with concerned advertisers inadvertently bidding on their competitors because Google placed the sponsored links on the trademark term via its ‘broad match’ system for broadcasting sponsored links against a wider set of terms than the advertiser originally specified.

More worrying is the fact that Google has made this change in policy for the UK and Ireland as a separate step before doing so for the whole of Europe. Why? The law in Europe – particularly in this area – is largely developed at European level by European Directives and then implemented by national parliaments. The only possible reasons are that Google thinks that legislation in the UK is different or the response would be softer than in continental Europe. Either way, Google is saying “The UK is a softer touch”. In fact, there is very little difference between the legislation in European countries thanks to the European Union.

What’s the consequence? Bizarrely, the very advertisers most targeted by Google for development – the blue chip corporate organisations with large advertising budgets – will be the most affected as they hold the greatest number of trademarks. They will now have to invest more in their search budgets to stay where they are now. The intellectual property lawyers will have a very busy time and IP costs will increase for budgets dramatically – and it is highly likely there will be high profile cases against Google because their broad match system – once the lawyers understand that fully that is. And Google will see if it can get away with it in the UK before expanding to the continent. If Google, the most successful global search engine succeeds, there may no longer be anything for trademark owners to protect and intellectual property won’t be the ‘property’ of anyone. Is that good for the consumer?

THE ANNOUNCEMENT:-

Hello,

We’re writing to inform you that we’re changing our trademark complaint
procedure in the UK and Ireland. This change may affect how we handle the
trademark complaint you currently have on file with Google.

If you’ve submitted a complaint letter requesting that we prevent
advertisers from using certain trademark terms anywhere in their ad text, we
will continue our efforts to support your request. However, from May 5,
2008, our trademark complaint investigations will no longer result in Google
monitoring or restricting keywords for ads served to users in the UK and
Ireland. This will bring our procedure in line with the approach taken in
the US and Canada. Complaints received on or after today will be processed
under our revised procedure.

You do not need to file your trademark complaint with us again unless you
would like to amend it based on the new guidelines. For more detailed
information regarding our trademark complaint procedure, we invite you to
review our revised complaint procedure, posted online at

http://www.google.co.uk/tm_complaint.html.

To learn more about this trademark policy revision, please visit
http://adwords.google.com/support/bin/answer.py?answer=92877&hl=en_US.

Sincerely,

Advertising Legal Support Team

Andy Atkins-Kruger
Andy is the CEO of Webcertain. He is a trained linguist with 20 years experience in international marketing, having helped major brand leaders with their advertising and public relations projects on five continents. Webcertain has been operating multilingual search marketing campaigns for over 15 years and is one of few agencies which only deal with international campaigns; the company doesn't deal in single market projects. Andy speaks regularly at conferences around the world, writes for the Multinational Search column of SearchEngineLand.com and is the Managing Editor of the Multilingual Search blog.

14 Responses to Google initiates trademark bloodbath in the UK

  1. Pingback: Google expands new trademark policy - but sidesteps Europe | multilingual search

  2. SEO Specialist says:

    No surprise to me, Google are a money making machine and have no problems with shifting responsibility if it makes them a bucket more in revenue. Indeed I would say that Google will do pretty much anything in order to drive up CPC rate, if that means no policing trademark keywords then that is that. To be fair I bet it has got the lawyers liking there lips as well…

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  5. Peeved says:

    So can we consider the people using the keyword to trigger in breach Trademark? If so any one know a good layer and our trade mark is already being used..

  6. Devon Banks says:

    I am a little confused with all of this. If I choose to use my competitors trade mark as a keyword who does the trade mark owner try to sue, Google or myself?

    I would be happy if someone could answer this as we are currently been threatened by a company for using a keyword which relates to their brand.

  7. John Anderson says:

    The Coke example is a very good one. Coke, being a huge brand, will not share the same problems as say ‘Brand X Cola’ who don’t have the spending clout as Coke. Coke, along with many other major brands will probably choose to bid on Brand X Cola’s trademark keywords, thus knocking Brand X Cola off the first position/page within the PPC results.

    We all want competition as it’s healthy and, as consumers, choice is how we make informed decisions.

    I think when comparing PPC advertising with any other form of marketing and advertising (offline) you have to be very careful. When a consumer searches for a brand online there is a reason they do this; it usually means the consumer has researched the various brands who provide the specific product, has chosen the brand and is usually in purchasing mode.

    I believe the debate on whether this move is good for search marketing in the UK will continue for some time.

    The question here, I think, is whether the search marketing playing field has been swayed towards the bigger brands with bigger purse strings?

  8. trademarks27 says:

    When I go into a store and ask for Coke they point me towards an aisle that has Coke, Pepsi, a store brand knock off, and a whole list of other choices. The sign outside the store said Coke and I asked for Coke. When I walked down the aisle the manger was there and he told me that Pepsi was on sale. I hope the Trademark lawyers shut this place … and all like it … down.

  9. John Anderson says:

    News that Google, from May 5th, are to change their UK policy on brand bidding, allowing competing companies to bid on each others brand and trademark keywords. This will obviously cause a major stir amongst search marketers across the UK, with many varying opinions as to whether this the correct decision on Google’s behalf.

    Current bidding policy restricts rival/competing companies to bid on each others branded keywords, this offers companies protection of their brand identity as they are the only company who rank in the Paid Ssearch results for their specific branded keywords. This seems like a logical policy as competing companies cannot bid on each others brands…it makes sense. From Google’s viewpoint the current policy offers minimal competition, thus lower revenue/profit gains potential as companies can opt for brand keyword bidding restriction, pay a nominal amount and reap the rewards of being ranked number one and only.

    The new policy will overhaul this protection so rival brands can compete for their competitors brand keywords. This will inevitablty result in some brands being knocked off the top PPC spot for their brand keywords. This move favours companies with higher spending clout as they can simply bid over and above their competitors for their branded keywords. The extreme scenario is that if you cannot afford to spend as much as your well-to-do neighbours you can wave goodbye to pageone listing, or even worse.

    Competition within search engines is obviously a very good thing as it means we must improve our skills and keep up-to-date with current practices. This move is an extreme case of competition and who knows what the implications of this move will be….we shall see…

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  11. I suspect that what will happen is that companies will miss the significance – the legal profession will then say you didn’t think it was important because you didn’t react for so long so it must be OK? Unless anyone thinks differently….

  12. trademark registration says:

    It’ll be interesting to see how companies respond to this change.

  13. Pingback: Disney » Google initiates trademark bloodbath in the UK

  14. Pingback: Google initiates trademark bloodbath in the UK | Legal Webmastering

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