*Dynamic Keyword Insertion – Stairway To Trademark Infringement?

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.

9 Responses to “*Dynamic Keyword Insertion – Stairway To Trademark Infringement?”

  1. 1 Birgit 23/06/2010 at 23:17

    I think it is more simple than you think. The keyword, in your example, is “puppies” as opposed to “cute puppies”. This is, I think, why it only “puppies” gets broadmatched and “keyword inserted”.

    I think if you booked “cute puppies” then it would be more difficult to find broach matches and you wouldn’t trigger as many ad/sponsored links which would really defeat the purpose.

    Finally, the Wein&Co decision is a trifle shocking. Keyword Insertion does not exist, since it wasn’t included in “evidence submission K”. Great, why did the defendant’s lawyer not submit Google’s definition at court as his evidence? I assume the court didn’t have a “Amtsermittlungspflicht”….

    • 2 Kristian Holte 09/08/2010 at 01:45

      Hi Maximillian

      I discovered your blog while searching for expertise on the relationship between trademark infringement and dynamic keyword insertion.

      Thank you very much. I find the topic of trademark protection in search engines extremely exciting and I am very pleased having found your blog, which I’ve added to my subscription list in Google Reader. I can’t seem to find other sources which treat the subject with such detail.

      One of my client has recently experinced that his trademark was used in a unrelated ad and this made med suspect that the dynamic keyword insertion made that possible. Your post helped me clarify that issue.

      Kind regards

      Kristian Holte

      • 3 austrotrabant 11/08/2010 at 15:41

        Dear Kristian,

        Thank you for your feedback. I am always happy to see that my research makes sense even though I haven’t submitted a single page yet.

        In case you have any specific question please do not hesitate to contact me. It may take a while, but I try to respond to every request!

        Kind regards,


  2. 4 matt van wagner 27/06/2011 at 12:50

    I have read your posts with interest. I believe you are in error on several factual points and would like to suggest some corrections and clarifications.

    First, Google’s DKI function inserts the keyword from the advertisers account, not the user’s search query. If Google had intended to insert the query, they probably would have named it Dynamic Query Insertion (DQI).

    DKI, when understood and applied correctly, carries no more risk than static ads. I can agree with the point that DKI has been misunderstood over the years, probably because people use the keyword to mean either the search query or the keyword booked in an advertiser’s acount,. My preference is describe what the user types into a search bar as a search query, or query, and the word that people book in their adwords accounts as a keyword. That often reduces the confusion when understanding how the DKI function works.

    Second, according to some legal analysis I’ve read, the Austrian Supreme Court ruled in the Wein&Co case that the defendant had indeeded booked the keyword “Wein&Co” in their adwords account and so it should be mystery that the DKI could insert Wein&Co into the ad and put the advertiser in violation of the trademark law.

    see: http://www.taylorwessing.com/uploads/tx_siruplawyermanagement/Baars_Schuler_Lloyd_CRi.en.pdf

    • 5 austrotrabant 27/06/2011 at 13:10

      Hi Matt,

      about the DKI: I see your point and I will read that stuff again. (http://adwords.google.com/support/aw/bin/answer.py?hl=en&answer=74996) The way I understood it, Google may display “Wein&Co” as the defedant had booked “Wein” which led to the fact that “Wein&Co” got displayed as a broad match keyword … (“AdWords automatically places your triggered ad group keyword or a broad match variation into the ad text” but I am very grateful for your comment and I’ll further investigate into this matter!

      about the “Wein&Co” case; It has already been some time since I’ve read all three (!) Wein&Co judgements for the last time, but as far as I remember the defendant argued that it had used the DKI at least for one ad.
      The OGH decision is, frankly speaking, of very low quality, which might be due to the fact that the court of second instance did mainly a copy&paste job of the plaintiffs claim when drafting its decision.

      The defendant’s lawyer argued that it was an unfortunate combination of DKI and broad match but failed to prove that such a function exists (sic!). Google was not a party in this case and the lawyer working for the defendant is specialised in corporate and tax matters….

  1. 1 *First German Post-Google-France Ruling: OLG Braunschweig Compares Google To A Shop-Assistant And Once Again Finds A Trademark Infringement « Austrotrabant's Blog Trackback on 21/12/2010 at 08:03
  2. 2 *’Belle Literie’ – French Court Finds AdWords Not To Infringe TM-Rights & Acting As A ‘Neutral’ (Hosting) Provider « Austrotrabant's Blog Trackback on 08/02/2011 at 09:03
  3. 3 *Finally! Doctoral Studies Completed! « Austrotrabant's Blog Trackback on 19/02/2012 at 10:14
  4. 4 BGH: MOST-Pralinen; German Supreme Court remains liberal on Keyword Advertising & contradicts Austrian and French Supreme Courts « Austrotrabant's Blog Trackback on 17/12/2012 at 08:02

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