Why Is Google Changing Its AdWords Trademark Policy Now?

Surprises

from the confidence-in-its-lawyers? dept

I was quite surprised last week to find out that Google has changed its rules on trademarks and AdWords in many countries around the world. In the past, it had limited the use of trademarks both in the ads and (more importantly) as keyword triggers. In the US it had allowed trademarks as keyword triggers (in most cases), but in other countries, where the laws and the courts more heavily favored trademark holders, the company had been much more strict.

Now, I think Google is absolutely right to take this stance, as I don’t see why it should be a problem at all to advertise on trademarked keywords, so long as the ads aren’t confusing to the users. Trademark is not about ultimate control over the mark, but has always been designed for the sake of consumer protection, to avoid having someone buying Bob’s Cola thinking it’s Coca-Cola. It was never designed to give total control to one company and allow them to prevent anyone else from making use of the trademark. Yet, over the years, trademark law has drifted further and further from those origins, and today many people falsely believe that it’s just like a patent or a copyright.

And, of course, even if you grant the (false) premise that trademarked terms shouldn’t be used as keywords to trigger advertising, it’s doubly ridiculous that Google should be liable. Google is just the platform provider, and if there needs to be any liability, then it should be on the advertiser, not Google itself.

So while I’m quite happy that Google is taking this stance, I’m really surprised (and somewhat confused) as to why it’s doing so. It will almost certainly lead to a lot of expensive lawsuits around the globe — and given how some other countries interpret trademark law these days, Google stands a decent chance of losing in some of those locations. Even in the US, the issue still comes up quite often… and, in fact, just as this change was being announced, a class action lawsuit was filed against the company in the US over the issue. Hopefully this case goes nowhere fast, because it seems to be repeating all the mistakes of earlier cases, misunderstanding the purpose of trademarks and falsely blaming Google rather than the actual advertisers. However, it’s noteworthy in that it’s the first class action suit of this nature, rather than just a single company. That means there will likely be more such suits on the way… and we’ll start to see them internationally as well, thanks to the policy change.

In a NY Times article about both the change and the lawsuit, a representative from Google is quoted as saying:

“I think that there will be trademark owners that do not like this policy,” said Terri Chen, senior trademark counsel at Google. “But trademark law allows for that. It is a pretty well-established principle in the offline world and in the online world.”

Again, while I agree, I find Google’s somewhat cavalier attitude towards the lawsuits that are certainly on the way surprising. It’s not just that trademark owners won’t like the policy. Many of them are going to sue — and trademark law around the world (unfortunately) is not as “well-established” as Chen seems to make out. All in all, it seems a bit surprising that Google would go out of its way to attract new lawsuits. Could it be that the company is back to fighting certain lawsuits for principle? This was something the company had done years ago, but had largely abandoned of late. Or is there some other reason? Some might argue that it’s a pure money grab, as this will allow more (and potentially more lucrative) advertising to run on the site, but the cost of lawsuits and the uncertainty of those lawsuits could be quite expensive.

Filed Under: adwords, lawsuits, policies, trademark
Companies: google