Google’s Instant Preview function for ads might have a significant impact onto the questions whether text-ads are infringing TM-rights as users of this function are shown a preview of the advertiser’s website even before they may click on the ad.
Without much celebration Google launched the instant preview function also for ads on its website (SERP to be precise) on the 25th or April. This means that as soon as the user’s cursor moves (‘hovers‘) over an ad on Google the search engine will display a small preview (more details of the content of the preview below) of the advertisers website. As a result users will be shown a preview of the advertiser’s website even before the users can click onto the ad to jump to the website the ad is liked to.
Advertisers can not opt of this function as Google AdWords Help states that “Instant Previews are an integral part of the AdWords search and ads experience for users and advertisers.” According to Google this function is currently available for all non-RTL (right-to-left) languages. The function isn’t enabled by default but users have to activate it once by clicking on the little magnifying glass next to a search result or next to an ad.
At first sight this change doesn’t overly surprise but the author is of the opinion that this feature might have a significant effect on the Keyword Advertising discussion as we know it. The ECJ in par 99 of Google France clearly stated that an advertiser may be found liable for TM-infringement in the case where “that advertisement does not enable an average internet user […]”. The ECJ didn’t refer to the text of the (text-)ad but to the “advertisement” as a whole, which means that also e.g. the labelling and the background colour of the ad were to be considered.
As a logical consequence also a novel function such as the preview option will have to be taken into account when judging whether or not the function of indicating origin is adversely affected. In the author’s opinion this will lead to the fact that users, who are exposed to the preview of ads, are less likely to be confused about the origin of goods and service. Furthermore the argument that users might get “lured away” from the search results and thus the link to the TM-proprietor will be even less valid in the future.
When taking a closer look at the preview one can quickly spot two things; first that sections of the website’s text are shown in black letter against a white background. Secondly that the search terms are highlighted in this text selection in bold black letters. The origin of the text displayed is also indicated by a thick orange rectangle around the respective section of the preview.
Google Help: ‘For some previews, highly relevant parts of the page will appear in text call out boxes over the preview image to help you see where your query appears on the page.‘)
It is also worth noticing that the background of the ad for which the preview is shown in light blue. This is very interesting as the Top-Ads on Google used to have a light blue background and just changed back to yellowish-orange by mid February 2011.
Bing.com, Google’s only rival left keeps using the light blue colour for its Top-ads but doesn’t offer any preview functionality for their ads.
One possible consequence of Google’s new feature might be that advertisers should not only (continue to) draft the text of their ads very carefully but they should clearly avoid any similarities between their website and the website of the TM-proprietor.
As the authors heavily doubts that the users will actually read the text highlighted in the preview the amount of information effectively communicated preview might remain ‘llimited‘ and as such any disclaimers or clear textual statements on the advertiser’s website might effectively be fairly irrelevant on a website which uses a similar layout and/or colours as the website of the TM-proprietor.
The new feature definitely increases transparency on Google’s search results page. As a result it will be easier for users to decide whether or not they would like to proceed to the advertisers website. Until the launch of this feature users had only the text of the ad and the (Display-) URL shown below the ad to base their decision on. This might especially be of importance in the light of the dawning law-of-unfair-competition cases as the ECJ in his recent decisions and opinions has kept narrowing the changes of a successful litigation against the advertiser on trademark grounds. Advertiser will most probably also embrace the feature as the preview is shown free of charge and might help to avoid unnecessary clicks onto ads and thus costs for the advertisers.
The downsides of this feature are that is not enabled by default and that might be difficult to implement this feature on devices which don’t use as mouse pointer but e.g. a touch screen.
The author, as always, welcomes any comments and remarks on this issue as this discussion might help us to bridge the time until the German BGH will finally release the full text of its decision in Eis.de/Banabay.de (which as well-informed rumours told the author have ended on the 13th of January this year very much in favour of the advertiser😉, which the court however will hopefully only do after the author has finally submitted his doctoral thesis on the very same matter.