*All Trademarks are equal [on Google] but one Trademark is just more equal than…

Picture 3Working my way through the legal part of my doctoral thesis reminds me of Medusa – whenever one legal problem challenge is tackled, two others appear behind it. I don’t come across a lot of creative or smart arguments. Still, the Links & Law blog brought an issue to my attention that did cause me to raise my eyebrows…

When I started researching the topic of keyword advertising, one of the the very first matters I turned my attention to was the “trademark policy” of Google AdWords. What indeed struck me was the fact that at first sight the AdWords trademark policy does not provide much guidance for e.g. advertisers who are unaware of whether or not they are allowed to use a competitor’s trademark. What the AdWords  TM-policy clearly does state is that “we are passionate about protecting the reputation of our brand… Nice to know.

Still, when it comes to the protection of third party trademarks, Google points out the fact that it is the sole responsibility of the advertiser to ensure that no laws are being violated through the use of a trademark as a keyword or as part of a text ad… because Google’s AdWords Terms and Conditions for advertisers prohibit intellectual property infringement by advertisers. Advertisers are responsible for the keywords they choose to generate advertisements and the text that they choose to use in those advertisements. Google’s line of argumentation in this respect is that booking the keywords etc. is a fully automated process and that Google can’t interfere at the booking stage because of the high number of keywords booked etc. etc. So far so good.

Still, as Ott pointed out in the German section of  his blog, the lawyers in Flowbee came up with a very smart argument: they did not only google the name of their client’s TM, but as a contrast, they’ve also googled Google’s TM!

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Thus it appears to me that all trademarks’ [in the internet wonderland] are Google’s trademarks, but contrary to fictional figure of the Queen of Hearts, Google’s “Delist!” ["Off with their heads!"] orders are usually carried out by its subjects.

[UPDATE 26/8/2009:]

I’ve played around a bit with Adwords today, trying to book the keywords “Google” and “Adwords” and then check if my ads get displayed. Here are the outcomes of my test:

1: Targeting my ads onto the region of Austria I was not allowed to use the term “Google” in the text of my ads.

2: Targeting my ads onto the region of Austria I was allowed to use the term “Adwords” in the text of my ads.

3: Targeting my ads onto the region of Austria I was able to book the keywords “Google” and “Adwords“, both set to “Broad Match“.

4: Searching for the word “Adwords” my ad got displayed as a Side-Ad.

5: Searching for the word “Google” no ads at all got displayed.

6: Searching for the word “googli” no ads at all got displayed.

6: Searching for the word “googlr” an ad got displayed as a Side-Ad.

7: Searching for the word “googlw” my ad got displayed as a Side-Ad(!).

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Conclusions:

a: Google does not allow to use the term “Google” in the text of an ad, at least, when the ad is targeted onto Austria.

b: Google does not show any ads when searching for the term “Google“.

c: Google DOES allow the display of ads for the keyword “Google” though its “Broad Match“-technique.


Assumption:

The reason why “googleW” and “googleR” might have triggered ads, contrary to “googlI“, might be that the keys “W“,”E” and “R” are all very close to one another on the keyboard, other than the key “I“. This seems to be take in account in Google’s Broad Matching technique.

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