*Firstly it will generally allow its advertisers in the US, Canada the UK and Ireland to use third party TM in the text of their ads.
*Secondly it will allow the booking of trademarks in some European countries (including Austria, Germany , the Netherlands and France!) in which TM owners can currently object against the use of their TM. Users in these countries will in the future only be able to object against the use of their TM in the text of the ad.
Google will therefore change its AdWords Trademark Policy on the 14th of September. Google AdWords policy defines under which circumstances TM owners can file a trademark complaint against the use of their trademark as a keyword or in the text of a third party ad.
Please also take a look at the chart below (click to enlarge) and at the end of the post which might help you to understand the subject. There is also a Summary of Changes paragraph at the end of this post…
There are currently (5th of August 2010) three (3) different levels of protection granted to TM owners in Google AdWords, depending on the country in which the ads should be displayed in.
Levels of Protection
First group / highest level of protection: TM can object against the use of their TM as a keyword. TM owner can object against the use of their TM in the ad text copy.
Second group / medium level of protection: TM can NOT object against the use of their TM as a keyword. TM owner can object against the use of their TM in the ad text copy.
Third group / lowest level of protection: TM can NOT object against the use of their TM as a keyword. TM owner can (generally) NOT object against the use of their TM in the ad text copy. TM owners in the U.S. can only object against the use of their TM in the text under certain circumstances (see quote below):
“In the U.S., we allow some ads to show with a trademark in ad text if the ad is from a reseller or from an informational site. However, if our investigation finds that the advertiser is using the trademark in the ad text in a manner which is competitive, critical, or negative, we will require the advertiser to remove the trademark and prevent them from using it in similar ad text in the future. Learn more about our U.S. trademark policy.”
The first group which receives highest level of protecting is what I call “the rest“. This group currently consists out of most European countries: e.g. Austria, Germany, France … . (for a complete list please click >>here<<)
The second group which receives a medium level of protection is what I call “the 194”. This group currently consists out of all the other 194 countries which are not “the rest”, e.g. The UK, Ireland, USA, Canada plus some other 190 countries. (for a complete list please click >>here<<)
The third group is a subgroup of the second group, and comprises countries with the lowest level of protection. Currently this group only consists out of one country; the U.S.
Summary of Changes
The first change is a shift from the UK, Ireland and Canada from the second to the third group. As a consequence, TM owners in the US, in Canada, the UK and Ireland will not be able NOT object against the use of their TM as a keyword and they will also (generally, please see above) NOT be able object against the use of their TM in the ad text copy.
The second change is a shift from most European countries (also including Austria, Germany and France) from the first to the second group. Thus TM owners in these countries will not be able NOT object against the use of their TM as a keyword.
“In the affected European countries after September 14, 2010, advertisers will be able to complain about the selection of their trademark by a third party if they feel that it leads to a specific ad text which confuses users about the origin of the advertised goods and services. Google will then conduct a limited investigation and if we find that the ad text does confuse users as to the origin of the advertised goods and services, we will remove the ad. However, we will not prevent use of trademarks as keywords in the affected regions.” [emphasis added]
This is not the first policy change Google has taken since the ECJ’s decision in Google France. In a recent policy change Google has forbidden its advertiser to imply ‘deceptive affiliations‘ which seems perfects reasonable in the context of the ECJ’s decision (for more information please see my previous posts on that topic). The change ad hand is beyond doubt a very self-confident step forward by Google.
Updated graphical summary: (click to enlarge)
UPDATE: As Adam Smith of the WTR has correctly noticed, it looks like Google will in the future only accept trademark complaints from its advertisers. This would mean that TM owners which do not use Google AdWords might not be able to file a complaint!