Following the ECJ’s decision in Google France users should be very cautious to use AdWords functions which enable the automatic display of (unpredictable) terms in the text the of ad, as this could create confusion about an economic connection between the advertiser and e.g. the TM proprietor and thus infringe TM-law.
Disclaimer: This is quite a specialised post. If you are not a bit into keyword options etc. you might find it a bit difficult to understand!
Google AdWord’s Keyword Insertion is an advanced feature that can help make advertisers to make their ad more relevant to a diverse audience. This function is recommended by AdWords if all the keywords in an ad group are closely related and fit well in each ad variation containing the keyword insertion code.
To use keyword insertion, the advertiser has to place a short piece of code into the ad text. Each time the ad shows, AdWords will automatically replace the code with the keyword (here ‘Puppies‘) that triggered the ad.
This feature also works for broad- or phrase-matched keywords, which might be different from the actual search query. When using broad match not only searches using the (booked) keyword (here: ‘puppies‘) will trigger the display of the ad but also variations thereof. Such variations can include synonyms, singular/plural forms, relevant variants of your keywords, and phrases containing your keywords. Although it is not possible to predict which (broad-matched) terms will trigger the ad, advertisers can check the Search Query Performance Report to see which searches have triggered the display of their ads in the past.
Google provides following example on his website: If a user searches for ‘cute yorkies’, which is similar to ‘yorkies,’ as a variation of the booked keyword ‘puppies‘, the ad will look like this:
As Google however points out the phrase ‘cute yorkies‘ does not appear in your ad because it’s not a keyword/phrase booked for the ad group.
To use the example Schirmbacher (Google-AdWords – Wie geht es weiter für Werbetreibende nach den EuGH-Urteilen?, GRUR Prax 2010, 165) has provided, the booking of the keyword ‘monitor‘ might trigger an ad including the (keyword variation) ‘samsung monitor‘ in its text, as Google broad-matches these two terms. (see below the ideas provided by Google’s Keyword Tool for the term ‘monitor‘).
Something I don’t find really clear is which word will actually appear in the text of the ad as I personally would have assumed that the term ‘cute‘ will by broad-matched to the term ‘puppy‘ in the same way the term ‘Samsung‘ got broad-matched to the term ‘monitor‘. Google’s statement that they don’t show the word ‘cute‘ as it is not a word/phrase booked for this ad doesn’t make any sense to me as the purpose of this functions seems to be insert words which the advertiser had not booked previously… But maybe one of my readers can help me to clarify this issue!
The combination of the Keyword Insertion feature with the “broad match” keyword option bears a lot of danger as it might lead to the display of terms AdWords considers related to the original keyword booked. That this danger is not purely hypothetical is proven e.g. by the Austrian Wein&Co case where the defendant claimed that he had not booked his opponent’s trademark (‘Wein&Co‘) as a keyword, but only used the ‘keyword insertion function‘ together with the (generic) keyword ‘Wein‘ (German for vine). (please see below, p 14 of the decision of first instance in Wein&Co)
The court however, unfortunately did not follow the defendant (as the parties could not prove that such a Function exists [sic!]) as thus the issue subsequently did not get discussed by the courts.
I can’t help but wonder where the court, or better the defendant’s lawyer, got their expertise from.