In my previous post, I wrote about Google’s change of trademark policy and that it will, as of the 4th of June for about 194 countries:
“no longer investigate complaints relating to the use of trademarks as keywords by AdWords advertisers”
BUT in its latest, actually quite flowery statement [“Image you are opening your Sunday paper…”] Google states that as of the 15th of June in the US:” …under certain criteria, you can use trademark terms in your ad text in the U.S. even if you don’t own that trademark or have explicit approval from the trademark owner to use it”
Google will allow ads to bear a TM even against the will of the TM owner, IF certain criteria (e.g. use of term in a descriptive or generic way, resale/nominative use, sale of components, Informational site) are met. This means that, in the future, in the U.S., resellers, review sites, and sellers of compatible/complementary/replacement products will be able to use a third party TM both, as a keyword AND in the text of their ads. What is interesting to see is that a “comparative advertisement” or “ads bearing critical statements about a TM owner’s practices ” which use the TM in the text of the ad will still be removed by Google, if the TM owner asks Google to do so. Concerning critical statements about a TM owner’s practices, I’d like to bring to your attention a recent Austrian Supreme court decision: Aquapol-Unzufriedene.
Economic consequences: Just imagine you always used to be the only one allowed to use your TM to advertise on Google. Thus the Costs per Click for your Keyword were very low. What will happen if other people are now allowed to bid for your keyword is that you will need much more money to keep your rank as first/top advertiser!
For further information please see also: Goldman, Google Liberalizes US Trademark Policy: “What, Me Worry?” Part 2, Technology & Marketing Law Blog