By Andy Atkins-Krüger, MD of WebCertain
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 May5 - but the deadline for new trigger keyword applications was effectively April 4.
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?
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